State v. Beckenbach

• Decision Date: 15 May 1984
• Docket Number: No. 2006,2006
• Citation: 1 Conn.App. 669,476 A.2d 591
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Henry BECKENBACH.

Page 591

476 A.2d 591

1 Conn.App. 669

STATE of Connecticut v. Henry BECKENBACH.

No. 2006.

Appellate Court of Connecticut.

Argued Feb. 8, 1984.

Decided May 15, 1984.

Joseph E. Fazzano, Hartford, with whom, on the brief, was Raymond Seligson, Hartford, for appellant (defendant).

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

Before TESTO, DUPONT and BORDEN, JJ.

BORDEN, Judge.

The defendant was convicted of the crimes of interfering with an officer in violation of General Statutes § 53a-167a(a) and breach of peace in violation of General Statutes § 53a-181(a). He appealed, ¹ claiming that the trial court abused its discretion in denying his motions for continuance which were based on the unavailability of the counsel of his choice at the time of the trial, and claiming that the evidence was insufficient to sustain the convictions.

The jury could reasonably have found the following facts. At about 9:30 p.m. on June 10, 1981, the defendant and his codefendant ² were riding their motorcycles in Danbury when the codefendant lost control, went through an intersection, hit a parked car and was thrown from his motorcycle. A restaurant was located at the intersection. The defendant parked his motorcycle in front of the restaurant and went to the codefendant's aid. Within minutes, officers James X. Terry and Sharon McIntosh of the Danbury police department arrived. Terry helped the codefendant to his cruiser to rest while awaiting an ambulance. Officer Leonard W. Silver Jr., a state protective service guard stationed at Western Connecticut State College, arrived in his cruiser. Just prior to the accident Silver had been proceeding north and been passed by the defendant and the codefendant proceeding south; and when he heard a dispatch about the accident, he immediately came to the scene.

As soon as the defendant saw Silver he began to shout "that mother-fucker almost got us killed" and that it was the "fucking auxiliary," meaning Silver, who had caused the accident. By now some thirty to forty patrons of the restaurant, some of them intoxicated, had left the bar of the restaurant and gathered within hearing distance of the defendant. Terry asked the defendant to calm down, which he did momentarily; but then he began to curse Silver, yelling "that mother-fucker got my friend hurt," and pounded with his fist on Silver's cruiser.

Detective Nelson Carvalho of the Danbury police department then arrived. He knew the defendant. He told the defendant to calm down or he would be arrested. The defendant and Carvalho began to cross the street to talk; but as the defendant saw the codefendant being put into the ambulance he headed for it. The ambulance attendant told him to step back so that the attendants could close the doors. Meanwhile Detective Elliot Brevard of the Danbury police department, who is black, told the defendant to step back and calm down. The defendant told Brevard to "get the fuck out of my face." The defendant, confusing Brevard with two other black officers, complained that Brevard had cut him off in traffic the previous night, and again told him to "get the fuck out of my face." Carvalho again warned the defendant to calm down or face arrest.

As Carvalho and Brevard walked away from the defendant, he continued to complain loudly about the "fucking cops" and the way they were investigating the accident. When Brevard and Carvalho were about fifteen feet from the defendant he yelled "you nigger cop" and that he was "going to get the nigger." He then approached Brevard, swearing and calling Brevard "a no-good mother-fucking cop." Brevard told the defendant he was under arrest for breach of peace.

When Brevard placed his hand on the defendant's arm to arrest him, the defendant pulled away and raised his arm to Brevard. Carvalho came to Brevard's aid and grabbed the defendant's other arm. Carvalho tried again to calm the defendant, but the defendant tried to push Brevard and Carvalho and continued to struggle. He was forceably led to a cruiser and handcuffed.

I

The defendant's principal claim is that the court abused its discretion in denying his motions for continuance of the trial so as to permit him to be represented by the counsel of his choice. Under the circumstances of this case, we agree.

The defendant was first arraigned on June 22, 1981, when he pleaded not guilty and elected a jury trial. In March, 1982, he retained Joseph E. Fazzano, of Hartford, a trial attorney of some twenty-five years experience, to represent him. Fazzano filed his appearance for the defendant. The case was assigned for trial on Wednesday, June 2, 1982, at which time Fazzano was on a trial in a civil case in Hartford. The court continued the case to June 3. On that date attorney Kevin Dubay, an associate in Fazzano's office, came to court and requested a continuance due to the defendant's insistence on Fazzano's defending him and Fazzano's unavailability due to the civil trial in which he was engaged. Dubay had been practicing law for approximately three years. ³ The court denied the request ⁴ and ordered selection of the jury to begin. After the jury was selected the case was continued to Tuesday, June 8. Fazzano was still on the trial in the civil case. Dubay informed the court of that fact, renewed the motion for a continuance and informed the court that the defendant insisted that Fazzano defend him. The court again denied the motion for continuance. The trial, with Dubay representing the defendant, consumed five trial days, beginning on June 8 and ending on June 17, resulting in conviction on both charges. The court then continued the case to June 18 for sentencing. On that date the defendant, through Dubay, moved "to set aside the verdict pursuant to Connecticut Practice Book Section 899" on the grounds of insufficiency of the evidence and denial of the motions for continuance. ⁵ The court denied the motions.

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). When, however, the reason for the requested continuance is the unavailability of a criminal defendant's chosen counsel, the exercise of that discretion requires a delicate balance between, on one hand, the defendant's constitutional right to counsel of his choice; see Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Linton v. Perini, 656 F.2d 207, 208 (6th Cir.1981); which is not absolute; State v. Rapuano, 192 Conn. 228, 233 n. 6, 471 A.2d 240 (1984); and, on the other hand, the public interest in the prompt and efficient administration of justice; Giacalone v. Lucas, 445 F.2d 1238, 1240 (6th Cir.1971), cert. denied, 405 U.S. 922, 92 S.Ct. 960, 30 L.Ed.2d 793 (1972); which includes the inherent and necessary right of the courts to "be firm and create the expectation that a case will go forward on the specific day that it is assigned." In re Mongillo, 190 Conn. 686, 691, 461 A.2d 1387 (1983). Thus, in such a situation the scale must be sensitively calibrated.

Each case must turn on its own facts and circumstances. Gandy v. State of Alabama, 569 F.2d 1318, 1324 (5th Cir.1978). The factors to be weighed are the timeliness of the request for continuance; the likely length of the delay; the availability of other, adequately equipped and prepared counsel to try the case; whether other continuances have been requested and granted; the balanced convenience and inconvenience to litigants, witnesses, opposing counsel and the court; whether the reasons for the continuance are legitimate, or whether the request is dilatory, purposeful or contrived; whether the defendant contributed to the circumstances giving rise to the request; the age and complexity of the case; whether denial of the continuance will result in identifiable and substantial prejudice to the defendant's case; whether there are numerous codefendants, rendering calendar control more difficult than usual; and any other relevant factors disclosed by the facts and circumstances of the case. See Linton v. Perini, supra, 210; United States v. Burton, 584 F.2d 485, 490-91 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); Gandy v. State of Alabama, supra; United States v. Rastelli, 551 F.2d 902, 905-906 (2d Cir.), cert. denied, 434 U.S. 831, 98 S.Ct. 115, 54 L.Ed.2d 91 (1977).

Applying these factors to the facts of this case, we are constrained to conclude that the trial court abused its discretion in denying the defendant's motions for a continuance. The requests were timely and repeatedly made. Although the delay was apparently long enough so that Fazzano was still on the civil trial on June 18, when the defendant was sentenced, a period of approximately two weeks from the first trial assignment date, there is no indication that the civil trial was of such a contemplated length that awaiting its completion would have delayed this trial for an unreasonably long period of time. Although the defendant does not point to any identifiable prejudice resulting from Dubay's representation and does not claim lack of effective representation by him; cf. State v. Chairamonte, 189 Conn. 61, 65-66, 454 A.2d 272 (1983); we cannot ignore the difference between being represented by a trial attorney of twenty-five years experience and being represented by one of three years experience in a case in which the defendant's liberty is at risk. ⁶ Cf. Giacalone v. Lucas, supra. No other continuances had been requested or granted. The only codefendant was also represented by Fazzano and joined in the motions for continuance. Cf. ...