State v. Beckenbach

• Decision Date: 10 December 1985
• Parties: STATE of Connecticut v. Henry BECKENBACH.
• Court: Connecticut Supreme Court

Page 752

501 A.2d 752

198 Conn. 43

STATE of Connecticut v. Henry BECKENBACH.

Supreme Court of Connecticut.

Argued Oct. 8, 1985.

Decided Dec. 10, 1985.

Linda N. Knight, Deputy Asst. State's Atty., with whom, on the brief, were Raymond Doyle and John Massameno, Asst. State's Attys., for appellant (State).

Joseph E. Fazzano, with whom, on the brief, was Kevin Dubay, Hartford, for appellee (Defendant).

Before PETERS, C.J., and HEALEY, SHEA, SANTANIELLO and ASPELL, JJ.

ARTHUR H. HEALEY, Justice.

This is an appeal, after certification, from a judgment of the Appellate Court reversing a conviction because the trial court abused its discretion in denying a continuance to the defendant. The Appellate Court remanded the case for a new trial. We granted certification on a petition by the state to review the judgment of the Appellate Court on this issue: "Whether in the absence of a showing of prejudice, the denial of a continuance sought to obtain counsel of a defendant's choice constitutes reversible error." We reverse the judgment of the Appellate Court.

The defendant, Henry Beckenbach, was convicted by a jury of the crimes of breach of the peace in violation of General Statutes § 53a-181(a) and of interfering with an officer in violation of General Statutes § 53a-167a. ¹ The charges arose out of the defendant's actions during an investigation of a motorcycle accident by the Danbury police department. The jury found the defendant not guilty of reckless driving, General Statutes § 14-222(a); and not guilty of the lesser included offense of speeding. ² The defendant appealed to the Appellate Court. The defendant claimed on that appeal that the evidence was insufficient to sustain the convictions and that the trial court abused its discretion in denying his motions for a continuance. The Appellate Court found that the evidence presented was sufficient to support the verdict, but held that a continuance should have been granted. The facts of the case are fully set forth in the Appellate Court opinion. State v. Beckenbach, 1 Conn.App. 669, 670-72, 476 A.2d 591 (1984).

The circumstances surrounding the defendant's requests for continuances based on the unavailability of his requested attorney are as follows: The defendant was arraigned on June 22, 1981, and pleaded not guilty. He elected to be tried by a jury. State v. Beckenbach, supra, 672, 476 A.2d 591. The law office of Joseph E. Fazzano filed an appearance in the case in March, 1982. The case was assigned a trial date of June 2, 1982, at which time it was reported to the trial court that Fazzano was on trial in a civil case in Hartford. State v. Beckenbach, supra. The court, Sullivan, J., continued the case until June 3, 1982. An associate in Fazzano's law firm, Kevin Dubay, appeared in court on June 3, 1982, at which time he requested a continuance. The court denied that request and a jury was selected on that date. After the jury was selected, the court, Sullivan, J., continued the case until June 8 because it had a prior court commitment. On June 8, Dubay again requested a continuance which was denied. Dubay informed the court on each date that Fazzano was engaged in a civil trial in Hartford and that the defendant had specifically requested that Fazzano represent him. The court noted on June 8 that there had been six days since the last continuance on June 3 and that "Mr. Fazzano had time to make arrangements to be here, or whatever, and I think that's very reasonable."

Dubay took an exception to both denials of the motions for a continuance. The trial commenced on June 8 with Dubay representing the defendant and his codefendant, Lawrence Spindle. The trial lasted five days, ending on June 17. State v. Beckenbach, supra, 673, 476 A.2d 591. The defendant was convicted of the two charges set out above. Both he and his codefendant were acquitted of the charge of reckless driving and of the lesser included offense of speeding. The court continued the case to June 18 for sentencing, at which time Dubay, as counsel for the defendant, moved "to set aside the verdict pursuant to Connecticut Practice Book Section 899" ³ on the ground of, inter alia, the denial of the motions for a continuance. Dubay stated that the "facts of which continuance still exist" and that "Mr. Fazzano is still on trial" in Hartford. The court denied the motion and an exception was taken.

The Appellate Court reviewed the actions of the trial court and, without any claim of demonstrable prejudice or ineffective assistance of counsel being advanced by the defendant, concluded that the trial court had abused its discretion in denying the requests for a continuance. State v. Beckenbach, supra, 675-76, 476 A.2d 591. The Appellate Court found error, reversed the judgment and ordered a new trial. State v. Beckenbach, supra, 680, 476 A.2d 591. Thereafter, the state sought, and we granted, certification.

As the Appellate Court noted, the "matter of a continuance is traditionally within the discretion of the trial judge, which will not be disturbed absent a clear abuse. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921, reh. denied, 377 U.S. 925, 84 S.Ct. 1218, 12 L.Ed.2d 217 (1964); Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983); State v. Olds, 171 Conn. 395, 402, 370 A.2d 969 (1976)." State v. Beckenbach, supra, 674, 476 A.2d 591; see also Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980). "It must be shown that the trial judge acted arbitrarily and substantially impaired defendant's ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion. The test is a stringent one." United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir.1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967). We do not hear this appeal de novo; the focus of our review is not the judgment of the trial court but the judgment of the Appellate Court. "The only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court." State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).

In reviewing the trial court's denial of the continuance sought by the defendant, the Appellate Court was bound by the principle that "[e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made." Ridgeway v. Ridgeway, supra. The right of a defendant to have a continuance is not "absolute." State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite, supra, 376 U.S. 589, 84 S.Ct. 849; State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977); State v. McKnight, 191 Conn. 564, 576, 469 A.2d 397 (1983). The only reason propounded by Dubay for the continuance and presented to the trial court in this case was that the defendant's chosen counsel, Fazzano, was still engaged in a civil trial in Hartford. ⁴ No specific or even approximate date was given to the court as to when Fazzano might have been able to conduct the defendant's trial. The trial court, therefore, could reasonably have viewed the motion as seeking a continuance of unspecified duration. Dubay, a three-year associate with Fazzano's law firm, did not at any time claim that he was unfamiliar with the case, that he was unprepared to go forward with the trial, or that he was so lacking in expertise that he did not feel able to conduct the trial. The charges pending in this case were misdemeanors and the case was of "relative simplicity." State v. Beckenbach, supra, 1 Conn.App. 676, 476 A.2d 591. Moreover, after the jury was selected on June 3, the case was continued by the court until June 8, which effectively allowed Dubay additional time in which to complete any preparation necessary to prepare an adequate defense. In addition, Dubay stated to the trial judge that the defendant has no "ax to grind with me personally, [but] would exercise [his] Constitutional choice with regard to effective assistance of counsel and do[es] insist upon Joe Fazzano trying this matter." ⁵ On appeal to the Appellate Court, the defendant did "not claim lack of effective representation"; State v. Beckenbach, supra, 676, 476 A.2d 591; nor does the defendant claim lack of effective representation on this appeal. The only issue decided by the Appellate Court, i.e., whether there was abuse of discretion by the trial judge, presented a question of a nonconstitutional nature. Where the claim of error on appeal is nonconstitutional, the burden is on the appellant to show that the error was harmful. State v. Randolph, 190 Conn. 576, 588-89, 462 A.2d 1011 (1983).

While there was no evidence that the defendant's attorney requested a continuance for purposes of delay or that the need for the continuance was attributable to the defendant himself, these "circumstances do not in themselves warrant a finding that the trial court abused its discretion." State v. Myers, 193 Conn. 457, 463, 479 A.2d 199 (1984). In Commonwealth v. Festo, 251 Mass. 275, 277-78, 146 N.E. 700 (1925), the Supreme Judicial Court of Massachusetts stated: "Unreasonable delay in the administration of justice can be avoided only by leaving continuances of cases because of conflicting engagements of counsel solely to the sound discretion of the court." See generally 112 A.L.R. 593.

While recognizing that each case turns on its own facts and circumstances and while recognizing that the defendant did not allege any "identifiable prejudice resulting from Dubay's representation," the Appellate Court nonetheless proceeded to presume prejudice: "[W]e cannot ignore...