State v. Corver

Counsel

*943Joseph G. Bruckmann, public defender, for the appellant (defendant)., Harry Weller, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Merav Knafo, certified legal intern, for the appellee (state)., On the basis of the evidence adduced at trial, the court reasonably could have found the following facts.1 In April, 2014, the defendant's wife, K,2 traveled to California to visit her mother and attend a dog show. While in California, K informed the defendant that she wanted to end their marriage. When the defendant picked her up at Bradley International Airport in Windsor Locks on the evening of April 23, 2014, he was very aggravated. Once inside her vehicle, the defendant begged her not to leave him. When K indicated that their marriage was over, the defendant, who was operating the vehicle, grew even more agitated. Concerned that the "situation was getting out of control," K attempted to call a friend. In response, the defendant grabbed her cell phone and tossed it out the window. The defendant then retrieved a knife from the driver's side door and began stabbing K on the left side of her body. While doing so, the defendant repeatedly told K that he loved her and did not want to hurt her, but that he was going to kill her for ruining his life., When a passerby spotted the vehicle against the tree, she stopped her vehicle and immediately called 911. Melinda Hegener, an emergency medical technician and the assistant chief of the Andover Volunteer Fire Department, first responded to the scene. Hegener testified at trial that K was "very pale" and "covered in blood ...." Hegener at that time believed that if K "didn't get medical attention soon ... she would probably [pass] out and die." K was transported by helicopter to Hartford Hospital, where she remained for approximately two weeks while undergoing multiple surgeries., The following additional facts are relevant to the defendant's claim. Although a public defender initially was appointed to represent the defendant due to his failure to post bond, Bausch filed an appearance as his privately retained attorney on July 18, 2014. The case was continued multiple times while the defendant reviewed discovery and discussed a possible plea deal with the state. On May 8, 2015, the state advised the court, Oliver, J. , that although it had been discussing a plea offer with the defendant for "a number of months," it did not believe that those discussions were "going to be fruitful." Accordingly, the state suggested that the case should be moved to the jury trial list. In response, Bausch requested a judicial pretrial conference and indicated that the defendant "wants to speak with me before [it] actually occurs." The court granted that request, and a pretrial was held on June 5, 2015., At the state's request, the court then canvassed the defendant on the part B information that recently was filed, which charged him with being a persistent dangerous felony offender. See footnote 5 of this opinion. During that canvass, the defendant confirmed that he understood that he was charged, under the substitute information, with four counts of attempt to commit murder, as well as with assault and kidnapping charges. The court also asked the defendant if he had any questions for Bausch about "the new charges" contained *947in the substitute information; the defendant replied, "[n]o." The court then continued the matter until Monday, October 26, 2015, "for a canvass on [the defendant's] decision to have his trial before either a jury or [a] court trial.", Bausch then made an oral motion to withdraw from the case due to a breakdown in communication with the defendant, stating that the defendant had "no interest in assisting me or communicating with me" and opining that their communications were "in complete disarray." The court then asked the defendant to provide the basis for his request that Bausch be discharged. The defendant stated that "we've been having issues with how to approach this case," as monetary issues had arisen due to the defendant's limited resources, which created "tension" between the two. As the defendant stated, he did not have "any more money to give him and we are down to the last minute.... [T]here's no money for investigators, there's no money for-the mental health exam you got was done last minute ...." At no time did the defendant express either a desire to represent himself or to have new counsel appointed. Bausch then clarified, with respect to those monetary issues, that "[i]t wasn't about me being paid money. What [the defendant is] referring to is about money for investigators, mental health [examinations] ....", The court then observed that the principal basis for the request to discharge concerned "money and the things that [it] buys in relation to a criminal defense," and noted that a defendant is not guaranteed, "whether [represented by private counsel] or a public defender, a bottomless pit of money with which to launch an investigation and put on a defense." With respect to the defendant's purported disinterest in cooperating with Bausch, the court stated, "That is his option. I haven't heard anything that says he is unable to. Whether [the defendant] chooses to do that is up to him in the face of a criminal prosecution ...." The *632court then addressed the defendant, stating: "I have let everyone say everything they wanted to say in terms of a basis for granting the oral motion to dismiss, and I've asked anything else, anything else, anything else, and what I have not heard is an actual basis to remove counsel and either have you represent yourself, which you certainly could, or appoint new counsel, or give you time to retain separate counsel ." (Emphasis added.) The court informed the defendant that "[i]t's always your option if you want to hire another attorney and have that attorney file an appearance in lieu of [Bausch], and then ask for a continuance ... and have that request granted or not; but as to a basis for removing [Bausch in light of the state's] suspicions about the basis being to delay, there's no basis to remove counsel, so that request is denied." The court further remarked that "if anyone ... listens *948to a recording of [the] Friday [October 23, 2015 hearing] or reads a transcript, no one's going to see any clue that there was any discord between the two of you ....", The court then reminded the defendant that, unless he elected to proceed with a court trial, jury selection would begin the next day, October 27, 2015. At that point, the defendant stated that Bausch had told him he would not be calling any witnesses for him due to a lack of funds. In response, the court stated: "I'm not hearing anything further in support of your request to remove your attorney, and the trial strategy between the two of you is the trial strategy between the two of you. I can tell you, though ... in cases of this nature, it is not unusual not to call defense witnesses [and] to [leave] the state to their proof ...." Whether to put on witnesses as part of a criminal defense, the court explained, was "a trial strategy decision ...." The defendant then complained that, in various discussions with Bausch that occurred on "several different times," Bausch had not provided "the same consistent answer", On appeal, the defendant claims that the court improperly denied the motion to discharge Bausch as counsel. The parties submit, and we agree, that appellate review of that determination is governed by the abuse of discretion standard. See State v. Gonzalez , 205 Conn. 673, 683, 535 A.2d 345 (1987) ("we conclude that the trial court did not abuse its discretion in not permitting the defendant to discharge his attorney").7 Pursuant to that standard, we make every reasonable presumption in favor of the correctness of the trial court's ruling. See State v. Williams , 317 Conn. 691, 710 n.17, 119 A.3d 1194 (2015). In the present case, both the defendant and Bausch requested, at the outset of the October 26, 2015 hearing, that Bausch be relieved of his representation in the present case. As this court has observed, "[t]he standard of reviewing both a motion by a defendant to discharge counsel and a motion by counsel to withdraw is the same.... It is within the trial court's discretion to determine whether a factual basis exists for appointing new counsel and, absent a factual record revealing an abuse of that discretion, the court's refusal to appoint new counsel is not improper.... Moreover, appellate tribunals look with a jaundiced eye at complaints regarding adequacy of counsel made on the eve of trial .... Such a request must be supported by a substantial reason and, [i]n order to work a delay *634by a last minute discharge of counsel there must exist exceptional circumstances." (Citations omitted; internal quotation marks omitted.) State v. Fisher , 57 Conn. App. 371, 382, 748 A.2d 377, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000)., *635The transcripts before us also reflect a good deal of cooperation between the defendant and Bausch prior to the request to discharge. When Bausch requested a pretrial conference when he appeared before Judge Oliver on May 8, 2015, he made clear that the defendant "wants to speak with me before [it] actually occurs." At the July 31, 2015 hearing, Bausch indicated that he had "talked to [the defendant] numerous times since the [June 5, 2015] pretrial" conference and then requested an additional continuance "to go over [a] last piece of evidence with [the defendant]." At the August 14, 2015 hearing, Bausch informed the court that he had discussed the plea offer with the defendant, stating that "we went over everything ...." When the defendant then rejected the state's plea offer, he confirmed during the court's canvass of him that he had discussed the matter with Bausch. The defendant further indicated that, on the basis of those discussions, he understood both his current exposure as well as the possibility that the state would file additional charges against him. The defendant at that time also acknowledged that he had been provided sufficient time to discuss with Bausch "all of [his] options" regarding the existing charges. Likewise, when Judge Oliver canvassed the defendant on the part B information on October 23, 2015, the defendant indicated that he understood the charges filed against him in the substitute information, as well as in the part B information. The defendant at that time also confirmed to the court that he had no remaining questions for Bausch about "the new charges" or the part B information., The defendant also argues that a colloquy that occurred subsequent to the court's ruling on his request to discharge demonstrates a breakdown in communication with his legal counsel. When the defendant later that day expressed his desire for a court trial, the court canvassed him on that decision. During that canvass, the court reviewed, inter alia, the pending charges alleged in the substitute information. When the court referenced the four attempt to commit murder counts, the defendant interjected, "How is it four attempted murders?" After the state's attorney provided an overview of the discrete acts that formed the basis for those charges, the defendant replied, that he would "like to talk to my attorney" because he still did not understand why those acts gave rise to four distinct charges of attempt to commit murder. The court then provided the defendant the opportunity to discuss the matter with Bausch. When that discussion concluded, Bausch informed the court that "I explained what I had to explain, Your Honor." The defendant thereafter expressed no further misapprehension of the four attempt to commit murder charges., The defendant next contends that his conviction must be reversed because *951he did not knowingly, intelligently, and voluntarily waive his right to a jury trial under the sixth amendment8 to the United States constitution.9 The defendant did not preserve this claim at trial and *639now seeks review pursuant to State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015).10 We review the defendant's claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Reynolds , 126 Conn. App. 291, 298, 11 A.3d 198 (2011)., "The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary.... [Our Supreme Court has] adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right.... This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record.... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case.... Our task ... is to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right *952to a jury trial.... Our inquiry is dependent upon the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused." (Citation omitted; internal quotation marks omitted.) State v. Woods , 297 Conn. 569, 583, 4 A.3d 236 (2010). "[W]hether a defendant has effectively waived his federal constitutional *640[right to a jury trial] is ultimately [a] legal question subject to de novo review, although we defer to the trial court's subsidiary factual findings unless they are clearly erroneous." (Internal quotation marks omitted.) State v. Rizzo , 303 Conn. 71, 91-92, 31 A.3d 1094 (2011), cert. denied, 568 U.S. 836, 133 S.Ct. 133, 184 L.Ed. 2d 64 (2012)., When the defendant appeared before the court, Oliver, J. , on the eve of jury selection, he sought to discharge his legal counsel. Following the denial of that request by the court, discussion turned to the defendant's election of a trial by jury or a court trial. The court advised the defendant as follows: "[Y]ou don't have to make your [decision right now]-you don't have to make an election to a court trial. You will have your trial by jury. You always can, if you choose to, elect to waive your right by jury. That's fine, but as it stands now you've elected ... to have your trial before a jury of your peers, and that will start tomorrow, here. That's where it stands now. If you want time to talk to Attorney Bausch I'll give it to you, but [if] you can't make that decision now, [then] [t]hat is fine. You'll start picking your jury [tomorrow] morning. That's the default setting, as well it should be, to have a number of individuals from the community decide guilt or not guilty beyond a reasonable doubt. You have to make the decision whether you're going to have one judge do it. That's fine, too. So, if you want me to begin the canvass, I will. Otherwise, tomorrow for jury selection.... [A]s it stands now, before Judge Graham you'll start picking your jury.", At that point, Bausch requested an opportunity to talk with the defendant "one last time," which the court granted. Following a recess, Bausch informed the court that he had spoken with the defendant and at that time was prepared to "let him make his decision" before the court. The defendant then stated, "[w]e're doing a bench *641trial ...." After confirming that Bausch had discussed that decision with the defendant, the court observed that this decision "was the purpose of being in court" on the preceding Friday, October 23, 2015. The court then began its canvass of the defendant by asking him various questions about his age, occupation, education, and prior experience before the criminal courts of this state. When the court asked the defendant if he understood the charges against him, which included four counts of attempt to commit murder, the defendant expressed confusion, stating, "How is it four attempted murders?" The state's attorney then provided an overview of the discrete acts that formed the basis for those charges, after which the court permitted the defendant to discuss the matter with his attorney. When Bausch then informed the court that "I explained what I had to explain, Your Honor," the court proceeded to detail the distinct allegations of the substitute information.