State v. Acampora

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STATE OF CONNECTICUT v. JOSEPH C.
ACAMPORA, JR.
(AC 38468)
DiPentima, C. J., and Alvord and Bear, Js.
Syllabus
Convicted of the crimes of assault of a disabled person in the third degree
and disorderly conduct, the defendant appealed to this court. He claimed,
inter alia, that the trial court violated his constitutional right to counsel
when it permitted him to represent himself at arraignment and during
plea negotiations without obtaining a valid waiver of his right to coun-
sel. Held:
1. The trial court did not abuse its discretion when it determined that the
defendant knowingly, intelligently and voluntarily waived his right to
counsel and invoked his right to self-representation: that court had no
duty to canvass the defendant concerning his waiver of the right to
counsel and his invocation of the right to self-representation until he
clearly and unequivocally invoked his right to self-representation, which
he did not do at arraignment, and although the defendant clearly and
unambiguously invoked his right to self-representation at a pretrial hear-
ing, the court canvassed the defendant that same day; moreover, to the
extent that the defendant claimed that the court violated his right to
counsel by not canvassing him prior to the date of that hearing, this
court declined to review that claim, the defendant having raised the
claim for the first time in his reply brief and there having been no
exceptional circumstances to warrant a consideration of the claim.
2. The defendant could not prevail on his claim that the court’s canvass at
the pretrial hearing was constitutionally inadequate because the court
did not explain in sufficient detail the nature of the charges against the
defendant and did not advise him of specific dangers and disadvantages
of self-representation: it was not necessary that the defendant be specifi-
cally informed of the particular elements of the crimes he was charged
with before being permitted to waive counsel and to proceed pro se,
as the court advised the defendant of the statutory names of the charges
pending against him as well as the penalties associated with those
charges, the elements of which were relatively straightforward and
aligned with the statutory names of the offenses, and the court reason-
ably could have concluded that the defendant understood the nature of
the charges against him sufficiently to render his waiver of the right to
counsel knowing and intelligent; moreover, during its canvass, the court
explored the defendant’s lack of familiarity with substantive law and
procedural rules, and alerted him to the fact that he would be expected
to educate himself on those areas of the law and procedure and to
comply with the same rules that govern attorneys during trial, and that
discussion sufficiently apprised the defendant of the general dangers
and disadvantages associated with self-representation, as opposed to
representation by an attorney trained in the law.
3. The defendant could not prevail on his unpreserved claim that the trial
court violated his right to present a defense by improperly denying his
motion to open the evidence so that he could present the testimony of
an objective third party witness who would have been able to directly
attack the credibility of the victim as to whether an ambulance had
been dispatched to his residence on the date of the incident at issue;
the evidence that the defendant sought to admit would not have been
admissible in his case-in-chief, as it was a voice mail message that
constituted inadmissible hearsay, the defendant did not identify any
exception to the hearsay rule that would have permitted its admission,
and even if the court interpreted the defendant’s statements about the
voice mail as a request to open the evidence, the testimony about
whether an ambulance was dispatched to the victim’s residence related
to a collateral matter and not a material issue, and the impeachment
of the victim’s testimony on a collateral matter through extrinsic evi-
dence was not permitted under our rules of evidence.
Argued May 22—officially released September 5, 2017
Procedural History
Substitute information charging the defendant with
the crimes of assault of a disabled person in the third
degree, disorderly conduct and interfering with an
emergency call, brought to the Superior Court in the
judicial district of New Haven, geographical area num-
ber seven, and tried to the jury before Klatt, J.; there-
after, the court denied the defendant’s motion to open
the evidence; verdict and judgment of guilty of assault
of a disabled person in the third degree and disorderly
conduct, from which the defendant appealed to this
court. Affirmed.
Mary A. Beattie, assigned counsel, for the appel-
lant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and James R. Dinnan, senior assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Joseph C. Acampora, Jr.,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of assault of a disabled person
in the third degree in violation of General Statutes § 53a-
61a and one count of disorderly conduct in violation
of General Statutes § 53a-182 (a) (1). The defendant
was found not guilty of interfering with an emergency
call in violation of General Statutes § 53a-183b. The
defendant represented himself at trial. On appeal, the
defendant claims that the trial court (1) violated his
right to counsel under the sixth and fourteenth amend-
ments to the United States constitution when it permit-
ted him to represent himself without obtaining a valid
waiver of his right to counsel and (2) violated his right
to present a defense, as guaranteed by the sixth and
fourteenth amendments to the United States constitu-
tion, when it denied his motion to open the evidence.
We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The defendant and the victim, Anthony Toth, are broth-
ers. The victim has cerebral palsy. In August, 2011, they
shared an apartment in a multifamily house with their
mother. At approximately 11:40 a.m. on August 3, 2011,
the defendant entered the victim’s bedroom and
grabbed him. The defendant accused the victim’s friend
of putting a hole in the windshield of his van when
they were setting off fireworks the night before. The
defendant slapped and punched the victim in the face
and head, and dragged him about the apartment. When
the victim grabbed his phone, the defendant took it
from him and threw it, causing the battery to fall out.
Thereafter, the defendant called the Wallingford Police
Department to report that his van had been vandalized,
and the victim called the police to report the assault
after he located and replaced his phone’s battery.
At approximately noon that same day, Officer James
Onofrio was dispatched to the defendant and the vic-
tim’s residence in response to the defendant’s vehicle
vandalism complaint. When Onofrio arrived, he met
with the defendant outside and examined the defen-
dant’s damaged windshield. The defendant explained
that he believed that the victim’s friend had damaged
the windshield with a firework the night before, but he
admitted that he had no proof of who caused the dam-
age. While talking to the defendant, police dispatch
informed Onofrio of the victim’s assault complaint. The
defendant informed Onofrio that he needed to leave to
go to a doctor, and Onofrio obliged because he did not
know, at that time, that the defendant was the subject
of the assault complaint.
Onofrio met the victim in his apartment. The victim
had a cut on his nose and blood on his nose, neck, and
arm, and he explained to Onofrio that the defendant
had assaulted him earlier that day because he believed
that the victim’s friend damaged his van’s windshield.
Consistent with the victim’s complaint, a neighbor
informed Onofrio that approximately fifteen minutes
before he had arrived in response to the defendant’s
vehicle vandalism complaint, she had heard the defen-
dant yelling and ‘‘loud banging and a lot of commotion’’
coming from the defendant and victim’s apartment.
Thereafter, the defendant was charged with assault
of a disabled person in the third degree, disorderly
conduct, and interfering with an emergency call. After
a jury trial, at which the defendant represented himself,
the defendant was found guilty of assault of a disabled
person in the third degree and disorderly conduct. The
defendant was found not guilty of interfering with an
emergency call. The court sentenced the defendant to
a total effective sentence of one year of imprisonment.
This appeal followed.
I
We begin with the defendant’s claim that his right to
counsel was violated when the court permitted him to
represent himself without obtaining a valid waiver of
his right to counsel. Specifically, the defendant claims
that the court improperly permitted him to represent
himself at arraignment and during plea negotiations
without canvassing him concerning his waiver of his
right to counsel. The defendant also claims that the
canvass performed by the court at a pretrial proceeding
on February 23, 2012, was constitutionally inadequate.
We reject both of these claims.
The following additional facts are relevant to these
claims. On September 14, 2011, the defendant appeared
for arraignment unrepresented by counsel. Because the
case involved allegations of domestic violence, a discus-
sion was held concerning whether family services, part
of the Court Support Services Division, was going to
be involved in the case, whether a protective order
needed to be put in place, and what the conditions of
that order should be because the defendant and the
victim lived together. The defendant declined the assis-
tance of family services, and the court, Scarpellino, J.,
ultimately agreed to permit the defendant to return to
the apartment that he shared with the victim. The court
continued the matter for one week so that family ser-
vices could contact the victim and obtain more informa-
tion. The following week, on September 21, 2011, family
services indicated that it had still been unable to contact
the victim, and the court granted another continuance.
Between September 28, 2011, and November 29, 2011,
the defendant requested and received four continu-
ances so that he could retain counsel. At the hearing
on November 29, 2011, the following colloquy occurred:
‘‘[The Prosecutor]: [The defendant] is asking for a
continuance to hire an attorney.
‘‘[The Defendant]: Still going.
‘‘The Court: One week.
‘‘[The Defendant]: One week.
‘‘The Court: Well, how many times do you want me
to continue? You know—
‘‘[The Defendant]: —well, listen, I’m not the one pur-
suing the case. You guys are coming after me, so—
‘‘The Court: Yeah, well—
‘‘[The Defendant]: —I mean—
‘‘The Court: —you can get a public defender—
‘‘[The Defendant]: —I don’t—I’ll represent myself,
Your Honor.
‘‘The Court: Did you apply for a public defender?
‘‘[The Defendant]: I, I got too much unemployment.
I get just enough not to get it, and—
‘‘The Court: All right. What was the offer on this?
‘‘[The Prosecutor]: There hasn’t been one because he
wanted to retain the services of counsel.
‘‘The Court: Once you tell the prosecutor you want
a lawyer, the prosecutor is going to—
‘‘[The Defendant]: Well, no. I did not tell him that.
‘‘The Court: All right.
‘‘[The Defendant]: They told me to get a lawyer, Your
Honor. So—
‘‘The Court: All right, well, because, so, so, then give
him—send it back and then give him an offer.’’
Thereafter, the defendant interjected that the case
was ‘‘ridiculous . . . .’’ The court explained to the
defendant that ‘‘the charge that’s there . . . carries a
mandatory year in jail. You, you need to get an attorney
. . . .’’ The defendant proceeded to argue about why
the case was ‘‘based on a bunch of crap’’ and stated:
‘‘And now, you—I, I,—if you want a big trial thing about
it, then I’d rather represent myself and I’ll do my own
investigation. . . . Because, honestly, from what I see
of attorneys, I believe I can do a better job myself.’’
The court said, ‘‘All right,’’ and the defendant asked,
‘‘So, we’ll give it one week again?’’ The court instructed
the defendant to talk to the prosecutor about his case
first. When the defendant’s case was recalled, the prose-
cutor indicated that he was unable to have a ‘‘cogent
conversation’’ with the defendant and stated that the
defendant ‘‘really needs an attorney to help him out.’’
The court therefore granted the defendant’s motion for
a continuance.
On December 13, 2011, after the defendant’s case
was called, the prosecutor noted that ‘‘[t]his is a matter
that’s been continued since September 14 [2011] at the
request of the defendant each time to hire counsel. The
state’s made an offer.’’ The court asked the defendant
how his efforts to retain counsel were proceeding. The
defendant responded: ‘‘Saving up [for an attorney]. I
got, like, $500 saved, and the lowest I got they want is,
like, $800. So, I’m unemployed. So, I’ve been unem-
ployed. So, plus, I pay my rent. I mean, I only get so much
from unemployment.’’ The court agreed to continue the
case so that the defendant could continue his efforts
to retain counsel. Between December 29, 2011, and
February 16, 2012, the court continued the case five
additional times so that the defendant could retain
counsel.1
On February 23, 2012, the state explained to the court,
McNamara, J., that the defendant’s case had been con-
tinued several times so that the defendant could retain
counsel. The court asked the defendant whether he had
in fact retained an attorney. The defendant replied: ‘‘No.
Um, well, I’m on unemployment. The person was my
brother. I called the police. I don’t believe I need a
lawyer. I don’t want a lawyer. I don’t have the money
to afford a lawyer.’’ When the court mentioned Judge
Scarpellino, the defendant interjected: ‘‘I asked him to
go on the jury trial.’’ The court asked the defendant
whether he had asked for more time to retain an attor-
ney, and the defendant indicated that he had. The defen-
dant explained that he had been saving money over the
last several weeks for an attorney, and he stated that
‘‘if I need to represent myself, I will, Your Honor, I will.
. . . I don’t believe I really need to . . . sacrifice . . .
not paying my rent to hire an attorney for . . . for a
junk case.’’
The court engaged in a discussion with the defendant
concerning his attempts to retain counsel. The defen-
dant stated: ‘‘They offered me forty-five days, which I
will not accept. So, the next move would have to be
trial. So, if we can start picking and maybe I’ll have
to—if I lose trial, I’ll . . . maybe I’ll . . . I’ll save my
money for the appeal.’’ The court asked the state
whether an offer had been made, and the state
responded that one had been made in December, 2011.
The defendant confirmed that he was rejecting that
offer. The court stated that it would place the case on
the firm trial list and canvassed the defendant concern-
ing his waiver of the right to counsel and invocation
of his right to self-representation. After completing its
canvass, the court found, inter alia, that the defendant
knowingly, intelligently, and voluntarily waived his right
to counsel.
Having reviewed the relevant factual and procedural
history, we now turn to the legal principles that guide
our analysis of the defendant’s claims. The sixth amend-
ment to the United States constitution, as made applica-
ble to the states by the fourteenth amendment,
embodies the right to counsel at all critical stages of a
criminal prosecution, including arraignment2 and plea
negotiations. See State v. Braswell, 318 Conn. 815, 827,
123 A.3d 835 (2015); State v. Pires, 310 Conn. 222, 230,
77 A.3d 87 (2013); see also Gonzalez v. Commissioner
of Correction, 308 Conn. 463, 474–84, 68 A.3d 624
(defendant’s arraignment was critical stage because of
presentence confinement issues that arose), cert.
denied sub nom. Dzurenda v. Gonzalez, U.S. ,
134 S. Ct. 639, 187 L. Ed. 2d 445 (2013); Mahon v. Com-
missioner of Correction, 157 Conn. App. 246, 253, 116
A.3d 331 (‘‘[p]retrial negotiations implicating the deci-
sion of whether to plead guilty [are] a critical stage in
criminal proceedings’’ [internal quotation marks omit-
ted]), cert. denied, 317 Conn. 917, 117 A.3d 855 (2015);
accord Davis v. Greiner, 428 F.3d 81, 87 (2d Cir. 2005)
(‘‘[i]t is well settled a defendant’s Sixth Amendment
right to counsel extends to plea negotiations’’).
‘‘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. . . . [T]he right to counsel and the right
to self-representation present mutually exclusive alter-
natives. . . . Although both rights are constitutionally
protected, a defendant must choose between the two.
. . . We require a defendant to clearly and unequivo-
cally assert his right to self-representation because the
right, unlike the right to the assistance of counsel, pro-
tects interests other than providing a fair trial, such as
the defendant’s interest in personal autonomy. . . .
Put another way, a defendant properly exercises his
right to self-representation by knowingly and intelli-
gently waiving his right to representation by counsel.
. . . Once the right has been invoked, the trial court
must canvass the defendant to determine if the defen-
dant’s invocation of the right, and simultaneous waiver
of his right to the assistance of counsel, is voluntary
and intelligent.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) State v. Braswell,
supra, 318 Conn. 827–28.
‘‘In the absence of a clear and unequivocal assertion
of the right to self-representation [however], a trial
court has no independent obligation to inquire into the
defendant’s interest in representing himself . . . .
[Instead] recognition of the right becomes a matter
entrusted to the exercise of discretion by the trial
court.’’ (Internal quotation marks omitted.) State v.
Pires, supra, 310 Conn. 231. ‘‘In the exercise of that
discretion, the trial court must weigh into the balance its
obligation to indulge in every reasonable presumption
against waiver of the right to counsel.’’ (Internal quota-
tion marks omitted.) State v. Carter, 200 Conn. 607,
614, 513 A.2d 47 (1986).
‘‘We ordinarily review for abuse of discretion a trial
court’s determination, made after a canvass . . . that
a defendant has knowingly and voluntarily waived his
right to counsel. . . . In cases . . . where the defen-
dant claims that the trial court improperly failed to
exercise that discretion by canvassing him after he
clearly and unequivocally invoked his right to represent
himself . . . whether the defendant’s request was clear
and unequivocal presents a mixed question of law and
fact, over which . . . our review is plenary.’’ (Citation
omitted; internal quotation marks omitted.) State v. Jor-
dan, 305 Conn. 1, 13–14, 44 A.3d 794 (2012).
A
The defendant first claims that the court deprived
him of his right to counsel when it permitted him to
represent himself at arraignment and during plea negoti-
ations without being canvassed concerning his waiver
of the right to counsel and invocation of the right to
self-representation. That is, the defendant contends that
a trial court’s duty to canvass is triggered whenever a
defendant appears at a critical stage of the proceeding
unrepresented by counsel. The defendant’s argument
is predicated on the assumption that ‘‘[t]he right to
self-representation is not triggered until the court has
canvassed a defendant in accordance with Practice
Book § 44-3 and the defendant has effectively waived
the right to counsel.’’ The defendant misapprehends our
jurisprudence concerning the invocation of the right to
self-representation and a trial court’s duty to canvass.
‘‘State and federal courts consistently have discussed
the right to self-representation in terms of invoking or
asserting it . . . and have concluded that there can be
no infringement of the right to self-representation in
the absence of a defendant’s proper assertion of that
right. . . . The threshold requirement that the defen-
dant clearly and unequivocally invoke his right to pro-
ceed pro se is one of many safeguards of the
fundamental right to counsel. . . . Accordingly, [t]he
constitutional right of self-representation depends . . .
upon its invocation by the defendant in a clear and
unequivocal manner. . . . In the absence of a clear and
unequivocal assertion of the right to self-representa-
tion, a trial court has no independent obligation to
inquire into the defendant’s interest in representing
himself . . . . [Instead] recognition of the right
becomes a matter entrusted to the exercise of discretion
by the trial court.’’ (Emphasis added; internal quotation
marks omitted.) State v. Pires, supra, 310 Conn. 231.
This constitutional rule ‘‘is grounded in the policy
and practical consideration that, such advices [about
the right to self-representation] might suggest to the
average defendant that he could in fact adequately rep-
resent himself and does not need an attorney, and it
would be fundamentally unwise to impose a require-
ment to advise of the self-representation procedure
which, if opted for by the defendant, is likely to be to
no one’s benefit. . . . It also is consistent with well
settled Connecticut law, that, [i]n the absence of a clear
and unequivocal assertion of the right to self-represen-
tation, a trial court has no independent obligation to
inquire into the defendant’s interest in representing
himself, because the right of self-representation, unlike
the right to counsel, is not a critical aspect of a fair
trial, but instead affords protection to the defendant’s
interest in personal autonomy.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 248.
Accordingly, the court had no duty to canvass the
defendant concerning his waiver of the right to counsel
and his invocation of the right to self-representation
until he clearly and unequivocally invoked his right to
self-representation.
B
We next address whether and when the defendant
invoked his right to self-representation. It is undisputed
that the defendant did not clearly and unambiguously
invoke his right to counsel at arraignment. It is also
undisputed that the defendant clearly and unambigu-
ously invoked his right to self-representation on Febru-
ary 23, 2012, and that the court canvassed the defendant
that same day. To the extent that the defendant further
claims that the court violated his right to counsel by
not canvassing him prior to February 23, 2012, however,
we conclude that such a claim is unreviewable.
In his opening brief, the defendant argued only that
the court violated his right to counsel by permitting him
to represent himself at critical stages of the proceedings
without canvassing him as to his waiver of his right to
counsel and invocation of his right to self-representa-
tion. In its brief, the state responded that the court was
not required to canvass the defendant until he clearly
and unequivocally invoked his right to self-representa-
tion. The state further observed: ‘‘The record reveals,
and the defendant does not assert otherwise, that he
did not clearly and unequivocally invoke his right to
self-representation until February 23, 2012.’’ The state
did not thereafter address whether the defendant
clearly and unequivocally invoked his right to self-repre-
sentation prior to February 23, 2012. In his reply brief,
the defendant continued to maintain that because it
was ‘‘obvious’’ that he was representing himself at
arraignment and during plea negotiations, the court was
required to canvass him. In the alternative, the defen-
dant argued that, even if he was required to clearly and
unequivocally invoke his right to self-representation, he
did so on November 29, 2011, and February 23, 2012.3
The defendant claimed therefore that the court violated
his right to counsel by not canvassing him before he
engaged in plea negotiations with the state on Novem-
ber 29, 2011, and rejected the state’s plea offer on Febru-
ary 23, 2012.
‘‘It is axiomatic that a party may not raise an issue
for the first time on appeal in its reply brief. . . . Our
practice requires an appellant to raise claims of error
in his original brief, so that the issue as framed by him
can be fully responded to by the appellee in its brief,
and so that we can have the full benefit of that written
argument. Although the function of the appellant’s reply
brief is to respond to the arguments and authority pre-
sented in the appellee’s brief, that function does not
include raising an entirely new claim of error.’’ (Cita-
tions omitted; internal quotation marks omitted.) Craw-
ford v. Commissioner of Correction, 294 Conn. 165,
197, 982 A.2d 620 (2009). Exceptional circumstances
may persuade us to consider an issue raised for the
first time in a reply brief. See, e.g., State v. McIver,
201 Conn. 559, 563, 518 A.2d 1368 (1986) (permitting
defendant to raise issue for first time in reply brief
because record adequately supported claim defendant
had been deprived of fundamental constitutional right
and fair trial); see also Curry v. Burns, 225 Conn. 782,
789 n.2, 626 A.2d 719 (1993) (permitting appellant in
reply brief to join amicus curiae request to overrule
prior case law); 37 Huntington Street, H, LLC v. Hart-
ford, 62 Conn. App. 586, 597 n.17, 772 A.2d 633
(addressing issue raised in reply brief where appellant
had no earlier opportunity to respond to issues raised
in briefs filed by amici curiae), cert. denied, 256 Conn.
914, 772 A.2d 1127 (2001).
No exceptional circumstances exist that persuade us
to consider this issue, which was raised for the first
time in a reply brief. Therefore, we decline to review
the defendant’s belated claim that he clearly and
unequivocally invoked his right to self-representation
on November 29, 2011, and that the court violated his
right to counsel by not canvassing him on that date.
C
The defendant next claims that the court’s canvass
on February 23, 2012, was constitutionally inadequate
because the court failed to explain to him in sufficient
detail the nature of the charges and to advise him of
specific dangers and disadvantages of self-representa-
tion. We disagree.
The following additional facts are relevant to the
defendant’s claim. On February 23, 2012, the court,
McNamara, J., canvassed the defendant concerning his
waiver of his right to counsel and invocation of his
right to self-representation. In relevant part, the court
engaged in the following colloquy with the defendant
concerning the charges pending against him:
‘‘The Court: All right. Do you understand the charges
that you are facing, sir?
‘‘[The Defendant]: Yes, I do.
‘‘The Court: You are facing the charge of assault in
the third degree—is it a victim over sixty—of a victim
over sixty?
‘‘[The Prosecutor]: It’s on a disabled person. Correct.
‘‘The Court: A disabled person.
‘‘[The Prosecutor]: Correct.
‘‘The Court: Interfering with an emergency call and
disorderly conduct. Do you understand that?
‘‘[The Defendant]: Yes, I do.
‘‘The Court: Do you understand the minimum and
maximum penalties of these charges?
‘‘[The Defendant]: Do I understand the minimum—
‘‘The Court: —and maximum penalties in these
charges.
‘‘[The Defendant]: What are they? I don’t think they
were told to me.
‘‘The Court: All right. For the assault on a person,
disabled person—
‘‘[The Prosecutor]: It’s a one year minimum, one
year maximum.
‘‘The Court: —is a one year minimum, mandatory
minimum, which means that if you were convicted you
would do a minimum time of one year in jail for that
charge alone. All right. For the charge of interfering
with an emergency call, you would—that would be a
[class] C mis—let me see—that would be a [class] A
misdemeanor. You can get another year in jail, plus a
$2000 fine. And disorderly conduct is ninety days and
[a] $500 fine. So, now you understand the penalties
involved. Is that right?
‘‘[The Defendant]: Yes, I do, Your Honor.’’
The court also canvassed the defendant concerning
his education and experience with the law, as well as
his obligation to educate himself on the relevant law
and procedure and to comply with the same rules that
govern attorneys during trial:
‘‘The Court: And how far have you gone in school?
‘‘[The Defendant]: I graduated high school.
‘‘The Court: Can you read?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: All right. You know you have a right
to counsel?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: All right. Have you ever been involved
in a criminal trial before?
‘‘[The Defendant]: In a trial? No, Your Honor.
‘‘The Court: All right. Have you ever been the subject
of a competency evaluation?
‘‘[The Defendant]: No, Your Honor.
‘‘The Court: Did you represent yourself during any
cases at all?
‘‘[The Defendant]: Criminally, no.
‘‘The Court: Any cases at all, I said.
‘‘[The Defendant]: Um, up at the appellate division
in Hartford. Yes. Back in last year. Yes, I did. . . .
‘‘The Court: All right. Are you familiar with the laws
and rules of procedure regarding evidence, pretrial
motions, voir dire for criminal trials?
‘‘[The Defendant]: Um, no, Your Honor.
‘‘The Court: All right. Are you familiar with the rules
of discovery for criminal matters, sir?
‘‘[The Defendant]: No, Your Honor.
‘‘The Court: Do you realize that, if you represent
yourself, the judge will be impartial and cannot advise
you on the procedures, [substantive] issues in the case?
‘‘[The Defendant]: I understand that now.
‘‘The Court: All right. Are you familiar with plea bar-
gaining?
‘‘[The Defendant]: Yes, I am.
‘‘The Court: Can you do that yourself?
‘‘[The Defendant]: Yes. I believe I could.
‘‘The Court: Okay. Are you—do you have access to a
library to learn these things that you need to understand
before you go to trial?
‘‘[The Defendant]: Yes, I do, ma’am.
‘‘The Court: Can you conduct yourself at a trial?
‘‘[The Defendant]: I believe so.
‘‘The Court: All right. So, you feel you possess the
training, education, and experience and skill to repre-
sent yourself and to try the case yourself. Is that
true, sir?
‘‘[The Defendant]: Yeah. Yes, sir, Your Honor.
‘‘The Court: All right.
‘‘[The Defendant]: I believe I can.
‘‘The Court: You understand that you can’t have an
attorney and represent yourself? You either represent
yourself, or you have an attorney represent you. You
understand that, sir?
‘‘[The Defendant]: Yes, I do.
‘‘The Court: All right.
‘‘[The Defendant]: But I have one question.
‘‘The Court: And, at trial, you will be at the counsel
table all by yourself. You understand that?
‘‘[The Defendant]: Yes.
‘‘The Court: You’ll be sitting there presenting your
case on your own. Now, when you have a criminal trial,
you’re expected to follow the rules and procedures that
we make the lawyers follow.
‘‘[The Defendant]: Okay. Can I have one of my—if
someone decides to, can I have an attorney present in
the courtroom while it’s being—
‘‘The Court: —You can’t have the attorney sit with
you at the table.
‘‘[The Defendant]: I can’t have anyone even sit—I
don’t want to have my—
‘‘The Court: He—if he—he can sit—
‘‘[The Defendant]: I’m sorry. Okay.
‘‘The Court: —he can sit in the courtroom—
‘‘[The Defendant]: That’s fine. That’s fine.
‘‘The Court: —if you—
‘‘[The Defendant]: He can hear the case.
‘‘The Court: —he can sit in the courtroom, but—
‘‘[The Defendant]: Excellent.
‘‘The Court: —if you decide you want the attorney
to represent you, that attorney would file an appearance
and be present. You understand that?
‘‘[The Defendant]: Yeah. No. I want to represent
myself.
‘‘The Court: All right. So, is it your wish today to
proceed to trial and represent yourself?
‘‘[The Defendant]: Yes, it is, Your Honor.
‘‘The Court: Is this your decision?
‘‘[The Defendant]: This is my decision in full.
‘‘The Court: Are you making it voluntarily and of your
own free will?
‘‘[The Defendant]: Yes. Yes, ma’am.
‘‘The Court: And no one has found—has threatened
you or promised you. Is that right?
‘‘[The Defendant]: That’s correct.’’
After completing its canvass, the court found, inter
alia, that the defendant knowingly, intelligently, and
voluntarily waived his right to counsel.
‘‘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.
. . . That court further explained that a record that
affirmatively shows that the defendant is literate, com-
petent, and understanding, 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. . . . Practice Book § 44-34 serves to
guide our trial courts in making this inquiry. . . . Nev-
ertheless, [b]ecause the . . . inquiry [under § 44-3]
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 provision of § [44-3] cannot be construed to require
anything more than is constitutionally mandated. . . .
Thus, the court need not question a defendant regarding
all of the . . . § 44-3 factors. . . . Instead, the analysis
under that rule of practice is designed to help the court
answer two questions: [W]hether a criminal defendant
is minimally competent to make the decision to waive
counsel, and . . . whether the defendant actually
made that decision in a knowing, voluntary and intelli-
gent fashion.’’ (Citations omitted; footnote in original;
internal quotation marks omitted.) State v. Braswell,
supra, 318 Conn. 828–29.
‘‘The fact that the defendant’s decision to represent
himself was misguided or based on his erroneous per-
ceptions of . . . his own ability to defend himself and
resulted in a conviction is of no consequence. We review
the record to determine whether the trial court properly
concluded that the defendant was competent to make
the decision to waive counsel, and that his decision was
made in a knowing, voluntary and intelligent fashion.’’
(Internal quotation marks omitted.) State v. Taylor, 63
Conn. App. 386, 403, 776 A.2d 1154, cert. denied, 257
Conn. 907, 777 A.2d 687, cert. denied, 534 U.S. 978, 122
S. Ct. 406, 151 L. Ed. 2d 308 (2001).
On February 23, 2012, the court encountered, by all
appearances, a competent defendant seeking to repre-
sent himself. The defendant claimed that he had been
attempting for months to retain counsel without suc-
cess. The defendant explained that, although he knew
that he had the right to counsel, he was not financially
able to retain counsel at that time, that he prioritized
paying his rent over paying for an attorney, and that
he would prefer to save his money to hire appellate
counsel, if necessary, rather than trial counsel. The
court then canvassed the defendant concerning his edu-
cational background, experience with the law, and his
obligations when representing himself. The defendant
confirmed that he could read. He further acknowledged
that he had only a high school education, had never
been involved in a criminal trial before, had never repre-
sented himself in a criminal proceeding, and was not
familiar with the laws and rules of procedure regarding
evidence, pretrial motions, voir dire, and discovery in
criminal matters. The court admonished the defendant
that ‘‘if you represent yourself, the judge will be impar-
tial and cannot advise you on the procedures, [substan-
tive] issues in the case . . . .’’ The court asked the
defendant whether he had ‘‘access to a library to learn
these things that you need to understand before you
go to trial . . . .’’ The court then cautioned the defen-
dant that ‘‘when you have a criminal trial, you’re
expected to follow the rules and procedures that we
make the lawyers follow,’’ and that, although he could
have an attorney sit in the courtroom, he could not
have the attorney sit with him at the table unless the
attorney filed an appearance in the case. Finally, toward
the end of its canvass, the court advised the defendant
that, if he changed his mind, he could have an attorney
file an appearance in the case and be present at trial.
The defendant affirmatively responded to each of these
admonitions but maintained, ‘‘I want to represent
myself.’’ On the basis of this record, the court reason-
ably could have concluded that the defendant was liter-
ate, competent, that he possessed sufficient
understanding of the duties of self-representation, and
that he was voluntarily exercising his informed free will
by waiving his right to counsel and invoking his right
to self-representation. See State v. Braswell, supra, 318
Conn. 828–29.
The defendant nonetheless contends that his waiver
of his right to counsel was not knowing and voluntary
because the court did not engage in a ‘‘comprehensive
discussion’’ with him concerning the elements of each
pending charge. As we have previously stated, ‘‘the
defendant need not be specifically informed of the par-
ticular elements of the crimes charged before being
permitted to waive counsel and proceed pro se. In fact
. . . perfect comprehension of each element of a crimi-
nal charge does not appear to be necessary to a finding
of a knowing and intelligent waiver. . . . 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 nature of the charges against him. A description of
the elements of the crime is not, however, a sine qua non
of the defendant’s constitutional rights in this context.
Indeed, in our cases we have approved of a defendant’s
assertion of the right to proceed pro se where the record
did not affirmatively disclose that the trial court
explained the specific elements of the crimes charged
to the defendant as long as the defendant understood
the nature of the crimes charged. . . . In each of those
cases, we concluded that the defendant had validly
waived his right to counsel, although none of those
decisions indicated that the defendant had been
expressly apprised of the elements of the crimes
charged.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Bangulescu, 80 Conn. App. 26, 45–46,
832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d
1171 (2003); accord State v. Wolff, 237 Conn. 633, 656,
678 A.2d 1369 (1996) (‘‘ ‘perfect comprehension of each
element of a criminal charge does not appear to be
necessary to a finding of a knowing and intelligent
waiver’ ’’).
We recognize that because the defendant was never
represented by counsel, the court could not appropri-
ately presume that an attorney had explained the nature
of the charges in detail to the defendant. See State v.
Caracoglia, 95 Conn. App. 95, 113, 895 A.2d 810 (‘‘[i]n
general, a trial court may appropriately presume that
defense counsel has explained the nature of the offense
in sufficient detail’’ [internal quotation marks omitted]),
cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006). We
disagree with the defendant, however, that, because
he was never represented by counsel, the court was
required to engage in a comprehensive discussion with
him about the elements of the pending charges in order
for his waiver to be valid. During the canvass, the court
advised the defendant of the statutory names of the
charges pending against him as well as the penalties
associated with the charges. The elements of each of
those charges are relatively straightforward and align
with the statutory names of the offenses.5 Cf. State
v. Frye, 224 Conn. 253, 261–62, 617 A.2d 1382 (1992)
(canvass inadequate where court failed to apprise
defendant of complexity involved in defending himself
against charge of possession of cocaine by person who
is not drug-dependent because, during course of his
defense, he would have to determine whether to present
evidence of drug dependency, which ‘‘is a complex
issue’’). The defendant was also well aware of the fac-
tual underpinnings of those charges, i.e., his alleged
assault of his brother, the victim, on the morning of
August 3, 2011. As a result, the court reasonably could
have concluded that the defendant understood the
nature of the charges pending against him sufficiently
to render his waiver of the right to counsel knowing
and intelligent.
The defendant also claims that the court’s canvass
was inadequate because the court failed to apprise him
of specific dangers and disadvantages associated with
self-representation. To support this proposition, the
defendant relies on several cases in which we have held
that a canvass including an advisement about certain
specific dangers or disadvantages associated with self-
representation was constitutionally adequate. The fact
that we held in these cases that a certain canvass was
constitutionally adequate does not mean that the consti-
tution requires all defendants to receive the same or a
similar canvass as the one being examined in another
case. ‘‘The defendant, however, does not possess a con-
stitutional right to a specifically formulated canvass
. . . . His constitutional right is not violated as long as
the court’s canvass, whatever its form, is sufficient to
establish that the defendant’s waiver was voluntary and
knowing.’’ (Internal quotation marks omitted.) State v.
Diaz, 274 Conn. 818, 831, 878 A.2d 1078 (2005). In the
present case, the court explored during its canvass the
defendant’s lack of familiarity with substantive law and
procedural rules, and alerted him to the fact that he
would be expected to educate himself on these areas
of the law and procedure and to comply with the same
rules that govern attorneys during trial. This discussion
was sufficient to apprise the defendant of the general
dangers and disadvantages associated with self-repre-
sentation, as opposed to representation by an attorney
trained in the law.
Accordingly, we conclude that the court did not abuse
its discretion when it determined that the defendant
knowingly, intelligently, and voluntarily waived his right
to counsel and invoked his right to self-representation
on February 23, 2012.
II
The defendant’s final claim is that the trial court,
Klatt, J., abused its discretion and violated his right to
present a defense when it denied his motion to open
the evidence so that he could present the testimony
of the battalion chief of the local fire department. In
particular, the defendant contends that the denial of
his motion to open violated his right to present a defense
because the battalion chief was ‘‘an objective third party
witness who would have been able to directly attack
the credibility of the [victim] on a key point,’’ i.e.,
whether an ambulance was dispatched to his and the
victim’s residence on August 3, 2011. The defendant
seeks Golding review6 of this unpreserved federal con-
stitutional claim. The state argues that the court prop-
erly exercised its discretion when denying the
defendant’s motion to open the evidence and did not
violate the defendant’s right to present a defense
because this evidence was inadmissible and related to
a collateral issue at trial. We conclude that, although
the defendant’s claim is reviewable under the first and
second prongs of Golding, the defendant has failed to
prove that a constitutional violation exists and deprived
him of a fair trial, as required by the third prong of
Golding.
The following additional facts are relevant to this
claim. On Thursday, July 16, 2015, trial commenced.
The state presented the testimony of Onofrio and the
victim. Onofrio testified, inter alia, that the victim had
visible injuries to his face when he met with him and
that the victim identified the defendant as his assailant.
Through Onofrio, the state admitted into evidence pho-
tographs Onofrio took of the victim on August 3, 2011,
which showed a bloody cut on the victim’s nose and
blood on his face, neck, and arm.
The victim testified that on August 3, 2011, the defen-
dant accused the victim’s friend of damaging the wind-
shield of the defendant’s van with a firework and
demanded to know the name of the victim’s friend.
The victim explained that during the course of their
altercation, the defendant injured him and threw his
phone while he was attempting to call 911. While dis-
cussing the sequence of events with the victim on cross-
examination, the following exchange occurred:
‘‘[The Defendant]: Did you ask them—when the
police arrived, did you ask for medical attention?
‘‘[The Victim]: Yes.
‘‘[The Defendant]: And you received an ambulance
at the scene?
‘‘[The Victim]: An ambulance came, yes.
‘‘[The Defendant]: An ambulance came? Okay. I don’t
know. That wasn’t in the [police] report.
‘‘[The Prosecutor]: Objection.
‘‘The Court: Strike that comment.
‘‘[The Defendant]: I’m sorry.
‘‘The Court: Question only, sir.’’ (Emphasis added.)
During his case-in-chief, the defendant first presented
the testimony of his and the victim’s mother, Karen
Toth. Karen Toth testified that she was living with the
defendant and the victim in August, 2011. She stated
that on the morning of August 3, 2011, and prior to the
altercation between the defendant and the victim, she
noticed that the victim had a lot of bruising and scrapes
on his face. Karen Toth explained that, over the years,
the victim frequently fell because of his cerebral palsy
and related seizures. After Karen Toth’s testimony, the
defendant testified, inter alia, that although he con-
fronted the victim about whether he damaged the van’s
windshield, he never hit the victim and never took the
victim’s phone.
When the defendant completed his testimony, the
court asked him whether he intended to call any addi-
tional witnesses, and the defendant began explaining a
clerical issue he had with his subpoenas. The court
interrupted the defendant and asked whether he would
be calling any additional witnesses that day, and he
stated that he would not. Thereafter, the jury was
excused and the court discussed with the defendant
the issue he had with his subpoenas. After that discus-
sion, the court asked the defendant whether he in fact
intended to call any other defense witnesses. The defen-
dant stated that he did not. The court asked the state
whether it intended to call any rebuttal witnesses, and
the state indicated that it did not. The court then stated:
‘‘So, we’ll conclude the evidence,’’ and the defendant
agreed.
On Tuesday, July 21, 2015, trial resumed. When the
court began to review the proposed jury charge with the
defendant and the state, the court-appointed standby
counsel for the defendant interjected that he would
‘‘like to bring something to the court’s attention. When
I spoke to [the defendant] this morning, he indicated
that he wanted to [open the] evidence because he had
new evidence to put on.’’ The defendant explained that
he wanted to present evidence to contradict the victim’s
testimony that ‘‘he saw an ambulance and that he had
medical attention at the scene.’’ The court then engaged
in the following colloquy with the defendant:
‘‘The Court: How do you intend to? You have a wit-
ness here?
‘‘[The Defendant]: Yes. Yes. Well, on Friday [July 17,
2015], I, you know—I was able to—I talked to [the]
Wallingford Fire Department. Was that okay, or no?
And they said, okay, that there’s no record that they,
[that] there was an ambulance service sent there on
August 3, 2011.
‘‘The Court: Okay. But did you subpoena anyone to
come to testify?
‘‘[The Defendant]: I just had their voice recording on
my voice mail.
‘‘The Court: All right. Here’s—
‘‘[The Defendant]: Would you like to hear it?
‘‘The Court: No.
‘‘[The Defendant]: It’s from a chief battalion.
‘‘The Court: All right. Can’t—
‘‘[The Defendant]: I think it would be great for an
appeal.
‘‘The Court: All right. All right. . . .
‘‘The Court: But in terms of an additional witness,
who would you call?
‘‘[The Defendant]: The witness is, I have my voice—
I have a voice mail from chief battalion of the Wall-
ingford. I mean, this is serious business.
‘‘The Court: All right.
‘‘[The Defendant]: This is my life. . . .
‘‘The Court: But the situation is, the matter was put—
the matter’s four years old.
‘‘[The Defendant]: Mm-hmm. Yeah.
‘‘The Court: You had ample time—
‘‘[The Defendant]: Yeah, four years of my life.
‘‘The Court: —to subpoena the witness. This is not
information that was unknown to you. You were given
the opportunity to investigate and subpoena the wit-
nesses at [the] time of trial.
‘‘[The Defendant]: Yes.
‘‘The Court: So, your motion to [open] the evidence
is denied.’’
The defendant continued to argue that he only had
‘‘one day’’ to research this issue because he did not
know that the victim asked for or received medical
treatment until he testified that an ambulance came to
his residence on August 3, 2011. The court acknowl-
edged the defendant’s arguments, but it stated that it
was still denying the defendant’s motion to open the
evidence because it believed that the defendant had an
adequate opportunity and sufficient resources to obtain
this evidence earlier.
‘‘The sixth amendment right to compulsory process
includes the right to offer the testimony of witnesses,
and to compel their attendance, if necessary, [and] is
in plain terms the right to present a defense, the right
to present the defendant’s version of the facts as well
as the prosecution’s to the jury so that it may decide
where the truth lies.’’ (Internal quotation marks omit-
ted.) State v. Cerreta, 260 Conn. 251, 260–61, 796 A.2d
1176 (2002). Nevertheless, the decision to open the evi-
dence either to present omitted evidence or to add
further testimony after either party has rested is within
the sound discretion of the trial court. State v. Carter,
228 Conn. 412, 420, 636 A.2d 821 (1994); State v. Rodri-
guez, 151 Conn. App. 120, 124, 93 A.3d 1186 (2014). In
order for a trial court’s denial of a motion to open the
evidence to constitute a sixth amendment violation, the
defendant must show that the evidence was of such
importance to the achievement of a just result that the
need for admitting it overrides the presumption favoring
enforcement of our usual trial procedures. State v. Car-
ter, supra, 421. That is, ‘‘[i]f the motion to [open] is
denied, we must, in determining whether the trial court
has abused its discretion, look to see if an injustice has
occurred by the omission of the evidence.’’ (Internal
quotation marks omitted.) Id. ‘‘Every reasonable pre-
sumption should be made in favor of the correctness
of the court’s ruling in determining whether there has
been an abuse of discretion.’’ (Internal quotation marks
omitted.) State v. Leconte, 320 Conn. 500, 511, 131 A.3d
1132 (2016).
‘‘In order to determine whether the trial court acted
reasonably in denying the defendant’s request to open
his case, we must first determine whether [the disputed
evidence] would have been admissible had the defen-
dant sought to introduce that evidence during the pre-
sentation of his case.’’ State v. Carter, supra, 228 Conn.
422. ‘‘The constitutional right to present a defense does
not compel the admission of any and all evidence
offered in support thereof. . . . The trial court retains
the discretion to rule on the admissibility, under the
traditional rules of evidence, regarding the defense
offered.’’ (Citations omitted; internal quotation marks
omitted.) State v. DeJesus, 260 Conn. 466, 481, 797 A.2d
1101 (2002). We conclude that the court did not violate
the defendant’s right to present a defense because the
evidence that the defendant sought to admit would not
have been admissible in his case-in-chief.
As an initial matter, we observe that the defendant
argues for the first time on appeal that the evidence he
sought to present was the testimony of the battalion
chief. (Emphasis added.) At trial, the defendant repre-
sented that the evidence he sought to admit was the
voice mail message from the battalion chief. The voice
mail message constitutes inadmissible hearsay; Conn.
Code Evid. §§ 8-1 and 8-2; and the defendant has not
identified an exception to the rule against hearsay that
would have permitted its admission into evidence. Even
if we were, for the sake of argument, to interpret the
defendant’s statements about the voice mail as a request
by the defendant to open the evidence so that he could
call the battalion chief as a witness, we would still
conclude that this evidence was inadmissible.
‘‘A witness may be impeached by the introduction of
contradictory evidence of other witnesses as long as
the evidence is in fact contradictory . . . and that evi-
dence does not relate to collateral matters . . . .’’ (Cita-
tion omitted.) State v. Jose G., 290 Conn. 331, 344, 963
A.2d 42 (2009). It is well settled, however, that a court
may properly exclude evidence that has only slight rele-
vance due to its tendency to inject a collateral issue
into the trial. State v. Annulli, 309 Conn. 482, 493, 71
A.3d 530 (2013). A matter is collateral if it is ‘‘not directly
relevant and material to the merits of the case.’’ (Inter-
nal quotation marks omitted.) State v. Jose G., supra,
344. Stated another way, the extrinsic evidence must
be ‘‘relevant to a material issue in the case apart from
its tendency to contradict the witness’’ to be considered
noncollateral and admissible. (Emphasis in original;
internal quotation marks omitted.) State v. Annulli,
supra, 493; State v. West, 274 Conn. 605, 641, 877 A.2d
787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L.
Ed. 2d 601 (2005); see also State v. Dougherty, 123
Conn. App. 872, 877, 3 A.3d 208 (‘‘[e]vidence is material
where it is offered to prove a fact directly in issue or
a fact probative of a matter in issue’’), cert. denied, 299
Conn. 901, 10 A.3d 521 (2010); State v. Maner, 147 Conn.
App. 761, 768, 83 A.3d 1182 (‘‘materiality turns upon
what is at issue in the case, which generally will be
determined by the pleadings and the applicable substan-
tive law’’ [emphasis in original; internal quotation marks
omitted]), cert. denied, 311 Conn. 935, 88 A.3d 550
(2014). ‘‘This is so even when the evidence involves
untruthfulness and could be used to impeach a witness’
credibility.’’ State v. Annulli, supra, 493. Consequently,
if the witness’ answer to a question on cross-examina-
tion relates to a collateral issue in the trial, that testi-
mony is conclusive and cannot be later contradicted
through extrinsic evidence. State v. Jose G., supra, 344.
In the present case, testimony about whether an
ambulance was dispatched to the victim’s residence
on August 3, 2011, related to a collateral matter and
therefore was inadmissible. Although the question of
whether an ambulance was dispatched to the victim
might be relevant to the question of whether the victim
was in fact injured, that was not a material issue in the
present case because the defendant did not dispute at
trial that the victim was injured. Instead, the defendant
disputed the timing and source of the victim’s injury.
In particular, he argued that the victim’s face was
injured prior to their altercation and that he was not
therefore the cause of that injury. As a result, the only
value in this evidence at trial was its tendency to contra-
dict the victim’s testimony that an ambulance was dis-
patched to his residence on August 3, 2011, and, thereby,
presumably to impeach his credibility. Indeed, the
defendant has consistently and exclusively argued
before this court and the trial court that this evidence
should have been admitted so that he could contradict
the victim’s testimony about the ambulance. Under our
rules of evidence, this type of impeachment on a collat-
eral matter through extrinsic evidence is not permitted.
Accordingly, the defendant has failed to prove that a
constitutional violation exists and deprived him of a
fair trial as required by the third prong of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Nothing in the record reflects that plea negotiations continued during
this period or that any additional offers were made by the state. On December
29, 2011, the state sought to place the case on the firm trial list, but the
court denied that request because the defendant was still attempting to
retain counsel.
2
As our Supreme Court previously has observed, ‘‘in Hamilton v. Ala-
bama, [368 U.S. 52, 54, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961)] the [United
States] Supreme Court stated only certain arraignments are a ‘critical stage.’
In Hamilton, the Supreme Court concluded that although an arraignment
in Alabama was a ‘critical stage,’ it acknowledged that whether it was a
‘critical stage’ in other jurisdictions depended on the role of an arraignment
in that particular jurisdiction. Id. It is important to note, however, that, in
more recent cases, the Supreme Court has acknowledged that ‘[c]ritical
stages include arraignments, postindictment interrogations, postindictment
lineups, and the entry of a guilty plea.’ Missouri v. Frye, [566 U.S. 134, 140,
132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012)]. Therefore, it seems that more
recent Supreme Court cases have not limited only certain arraignments to
be ‘critical stages.’ ’’ Gonzalez v. Commissioner of Correction, 308 Conn.
463, 480, 68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonzalez, U.S.
, 134 S. Ct. 639, 187 L. Ed. 2d 445 (2013).
In the present case, the state does not dispute that the defendant’s arraign-
ment constituted a critical stage. Accordingly, we assume for the purposes
of our analysis that the defendant’s arraignment was a critical stage.
3
We observe that when discussing facts relevant to his first claim on
appeal, the defendant did not reference the language from November 29,
2011, that he claimed in his reply brief constituted a clear and unequivocal
assertion of the right to counsel. He did reference his statement—‘‘I’ll repre-
sent myself, Your Honor’’—in a footnote when analyzing his claim that the
court’s February 23, 2012 canvass was constitutionally inadequate. This
footnote, however, did not analyze whether the defendant previously had
invoked his right to self-representation. Instead, it analyzed whether, and
to what extent, the defendant was previously advised of his ‘‘right to assigned
counsel,’’ i.e., a public defender. In particular, the footnote states: ‘‘Judge
Scarpellino told defendant [on November 29, 2011] ‘you can get a public
defender.’ . . . Defendant replied, ‘I’ll represent myself, Your Honor.’ When
the court asked him if he had applied for a public defender, defendant
replied, ‘I get too much unemployment.’ . . . On [December 29, 2011], the
state told the court that defendant did not want to apply for a public
defender.’’ (Citations omitted.)
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-
representation.’’ State v. Braswell, supra, 318 Conn. 828–29 n.4.
5
‘‘A person is guilty of assault of . . . [a] disabled . . . person . . . in
the third degree when such person commits assault in the third degree
under section 53a-61 and (1) the victim of such assault . . . [is] physically
disabled . . . .’’ General Statutes § 53a-61a (a) (1).
‘‘A person is guilty of assault in the third degree when: (1) With intent to
cause physical injury to another person, he causes such injury to such
person or to a third person; or (2) he recklessly causes serious physical
injury to another person; or (3) with criminal negligence, he causes physical
injury to another person by means of a deadly weapon, a dangerous instru-
ment or an electronic defense weapon.’’ General Statutes § 53a-61 (a).
‘‘A person is guilty of disorderly conduct when, with intent to cause
inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
such person: (1) Engages in fighting or in violent, tumultuous or threatening
behavior . . . .’’ General Statutes § 53a-182 (a) (1).
‘‘A person is guilty of interfering with an emergency call when such person,
with the intent of preventing another person from making or completing a
9-1-1 telephone call or a telephone call or radio communication to any law
enforcement agency to request police protection or report the commission
of a crime, physically or verbally prevents or hinders such other person
from making or completing such telephone call or radio communication.’’
General Statutes § 53a-183b (a).
6
‘‘Under Golding, a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
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.’’ (Internal quotation marks omit-
ted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015); see In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying Golding’s
third condition). ‘‘The first two steps in the Golding analysis address the
reviewability of the claim, while the last two steps involve the merits of the
claim.’’ (Internal quotation marks omitted.) State v. Britton, 283 Conn. 598,
615, 929 A.2d 312 (2007). ‘‘The appellate tribunal is free, therefore, to respond
to the defendant’s claim by focusing on whichever condition is most relevant
in the particular circumstances.’’ (Internal quotation marks omitted.) State
v. Dixon, supra, 511.