State Of Conn. v. Pires, 30860.

• Decision Date: 27 July 2010
• Docket Number: No. 30860.,30860.
• Citation: 122 Conn.App. 729,2 A.3d 914
• Parties: STATE of Connecticut v. Michael D. PIRES, Sr.
• Court: Connecticut Court of Appeals

122 Conn.App. 729

2 A.3d 914

STATE of Connecticut

v.Michael D. PIRES, Sr.

No. 30860.

Appellate Court of Connecticut.

Argued Feb. 16, 2010.

Decided July 27, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

April E. Brodeur, special public defender, for the appellant (defendant).

Paul J. Narducci and John P. Gravalec-Pannone, senior assistant state's attorneys, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).

FLYNN, C.J., and DiPENTIMA and SULLIVAN, Js. ^*

SULLIVAN, J.

The defendant, Michael D. Pires, Sr., appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims that the trial court improperly (1) denied him the constitutional right to self-representation and (2) instructed the jury in several ways, including on the requisite intent for the charged crime and on his right not to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the alleged offense, the defendant was staying at 121 Fourth Street, Norwich, with his son, Michael Pires, Jr., who engaged in the sale of illegal drugs. On the evening of June 27, 2004, the defendant and Pires, Jr., consumed several alcoholic beverages at a local club. While there, Pires, Jr., received a telephone call from the victim, who wanted to buy drugs from him. The victim subsequently arrived at the club and drove the defendant and Pires, Jr., to 121 Fourth Street, where they all entered the house. The victim and Pires, Jr., discussed the purchase of drugs, which turned into an argument when the victim offered to pay for the drugs with a check and Pires, Jr., rejected the offer and refused to provide the victim with any drugs.

As the disagreement between Pires, Jr., and the victim escalated, an associate of Pires, Jr., Tamir Dixon, intervened in the argument by punching the victim in the face. The victim fell to the floor, and Dixon and Pires, Jr., began kicking and hitting the victim. Several other young men also punched, kicked or hit the victim with a dumbbell weight. During the altercation, the defendant was nearby. Pires, Jr., began hitting the victim with a dumbbell weight, which Pires, Jr., testified that he had been instructed to do by the defendant. At some point in the altercation, the defendant was observed pounding nails into the victim's head with the dumbbell. The defendant also was observed choking the victim. After the assault concluded, the victim was wrapped in a carpet and carried out to the trunk of his own car.

At about 2:10 a.m. on June 28, 2004, Douglas A. Bisson was delivering newspapers on Fourth Street and Gilmore Street when he observed a youth acting as if he might be a “lookout.” The youth then ran toward a car and joined two other individuals standing around the open trunk of a car. When Bisson drove past the car again, the three individuals were no longer there but he called the police to report the suspicious activity.

Officers Anthony Gomes and Andre Rosedale of the Norwich police department, in response to the call, approached the car described by Bisson and observed that the trunk was closed and that near the car there was a rug, plastic bag and blanket that appeared to have moist red stains on them. As the officers were investigating, the defendant exited the side door of the residence at 121 Fourth Street. When the officers asked him about the car, the defendant said that “the guy [whose car it was had been there] before but hadn't come back yet.” When asked about the items near the car, the defendant claimed that children had spilled Kool-Aid on the items. The officers did not believe that the red stains looked consistent with Kool-Aid, so they opened the trunk and discovered the lifeless body of the victim. An ambulance was called for the victim, and the police transported the defendant to the police station to make a statement. The others involved had left the 121 Fourth Street house but were arrested later elsewhere.

Prior to the commencement of trial, the defendant made several requests to the court to remove defense counsel, special public defender Linda Sullivan, from the case. On May 25, 2005, the defendant requested that the court, Clifford, J., remove Sullivan from the case. The court found no cause to do so. Similar exchanges occurred on October 12 and November 15, 2005, in appearances before Judge Handy. On December 20, 2005, the defendant renewed his request, and the court, Schimelman, J., also denied the request. When the defendant mentioned his constitutional rights, the court informed him that as an indigent defendant, he had the right to counsel but not the right to choose his own counsel. After a recess granted by the court so that the defendant could discuss strategy with Sullivan, the court reconvened and Sullivan reported that the defendant had not discussed strategy but had told her that he wanted to represent himself. The court ordered the case to the firm trial list, and the hearing concluded.

The next time the defendant appeared before the court, in March, 2006, Sullivan filed a motion to withdraw as counsel, and attorneys Kevin Barrs and Bruce Sturman asked to be appointed due to the conflict between Sullivan and the defendant. The court granted the motion to withdraw and appointed Barrs and Sturman with the proviso that it did not want the defendant to continue requesting a new attorney at every hearing. The defendant did not make another request to replace counsel until August 2, 2006, at the start of trial, when he filed a pro se motion to dismiss counsel. At a hearing on August 3, 2006, the defendant withdrew that motion. The defendant filed another motion at the time of sentencing, titled “motion to dismiss” that the court treated as a motion to dismiss counsel, and the court denied the motion.

Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims he was denied the right to self-representation because the court failed to canvass him pursuant to the federal and state constitutions and Practice Book § 44-3, ¹ thereby violating his sixth amendment right to self-representation and his right to due process. We disagree.

We begin by noting that “[t]here is no doubt that a defendant has a right under both the state and the federal constitutions to represent himself at his criminal trial. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) ( Gethers II ); State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) ( Gethers I ); State v. Johnson, 185 Conn. 163, 178, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983); State v. Beaulieu, 164 Conn. 620, 630, 325 A.2d 263 (1973); see also Practice Book § [44-3]. The constitutional right of self-representation depends, however, upon its invocation by the defendant in a clear and unequivocal manner. Faretta v. California, supra, at 835, 95 S.Ct. 2525....

“In the absence of a clear and unequivocal assertion of the right to self-representation, 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.) State v. Carter, 200 Conn. 607, 611-13, 513 A.2d 47 (1986). “The clear and unequivocal request formulation has been said to have developed primarily as a standard designed to minimize abuses by criminal defendants who might be inclined to manipulate the system.... If an unequivocal request were not required, convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel.” (Citation omitted; internal quotation marks omitted.) State v. Gethers, supra, 197 Conn. at 377 n. 8, 497 A.2d 408.

In order to determine whether the court was required to canvass the defendant concerning his waiver of the right to counsel and his desire to proceed pro se, as he claims, we first must determine whether the request was made in a clear and unequivocal manner. ² The defendant argues that he made two clear and unequivocal requests for self-representation-at the pretrial hearing on December 20, 2005, and at the sentencing hearing on October 13, 2006. The question of whether the defendant's request is clear and unequivocal presents a mixed question of law and fact that this court reviews de novo. See State v. Flanagan, 293 Conn. 406, 420-21, 978 A.2d 64 (2009).

“To invoke his [s]ixth [a]mendment right [to self-representation] under Faretta [ v. California, supra, 422 U.S. at 806, 95 S.Ct. 2525] a defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to his request. Insofar as the desire to proceed pro se is concerned, [a defendant] must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made.... Moreover, it is generally incumbent upon the courts to elicit that elevated degree of clarity through a detailed inquiry. That is, the triggering statement in a defendant's attempt to waive his right to counsel need not be punctilious; rather, the dialogue between the court and the defendant must result in a clear and unequivocal statement.” (Citations omitted; emphasis in original.) State v. Flanagan, supra, 293 Conn. at 423-24, 978 A.2d 64.

APretrial

The defendant argues that he made, through his attorney, a clear and unequivocal request to represent himself at a pretrial hearing on December 20, 2005, which the court improperly denied by failing to canvass the defendant, informing him that his constitutional rights included only...