State v. Blackwell

• Decision Date: 10 February 1987
• Docket Number: No. 4691,4691
• Citation: 9 Conn.App. 587,520 A.2d 634
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael BLACKWELL.

Page 634

520 A.2d 634

9 Conn.App. 587

STATE of Connecticut v. Michael BLACKWELL.

No. 4691.

Appellate Court of Connecticut.

Argued Nov. 4, 1986.

Decided Feb. 10, 1987.

Joette Katz, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief were Donald A. Browne, State's Atty. and Henry Lyons, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and SPALLONE and BIELUCH, JJ.

SPALLONE, Judge.

The defendant appeals from the judgment of conviction, after a jury verdict, of two counts of attempted robbery in the first degree in violation of General Statutes §§ 53a-134 (a)(3) and 53a-49. The sole issue is whether the defendant, in the context of exercising his constitutional right to self-representation, manifested a knowing, intelligent and voluntary relinquishment of his right to counsel guaranteed by both the United States and the Connecticut constitutions. We find no error.

The circumstances relating to the defendant's claim require some elaboration. On April 15, 1985, following a pretrial conference, the defendant appeared in court and rejected a plea offer by the state. The defendant's counsel stated that the defendant was charged with two counts of attempted robbery in the first degree and one count of attempted assault in the first degree. When the defendant rejected the offer, the court stated: "Okay. I just want to make sure you understand robbery in the first degree is punishable by twenty years in State's prison. You're facing sixty years in State's prison. The offer here is five and a half years for you to serve in return for your plea." The defendant then requested that a different public defender be appointed to represent him and the court denied this request.

On April 24, 1985, the parties appeared in court to begin jury selection. Before beginning the voir dire, the defendant again requested a new attorney, stating that he did not believe that his attorney, William Holden, was handling his case properly. The trial court denied the request, finding that the defendant had presented no specific grounds to be granted a different public defender. The defendant then requested that he be allowed to defend himself. The court stated that the defendant had a right to try his own case, but advised the defendant against doing so. ¹ The defendant confirmed that he wanted to defend himself, and the court appointed Holden to act as his advisor.

Holden, over the defendant's objection, then requested the court to consider a competency hearing under General Statutes § 54-56d ² to determine whether the defendant was competent to represent himself. Holden stated that a psychiatrist, James Alexander, had previously examined the defendant at Holden's request, although not for competency purposes under General Statutes § 54-56d. The court requested that Alexander appear the next morning in court. The court then explained to the defendant the process of selecting the jury, including the use of peremptory challenges, and began the voir dire process with Holden as standby counsel. During a recess, the court explained that Holden would serve as a technical advisor and make his office available for subpoenas and other technical assistance. When the defendant again objected to Holden, the court suggested that another attorney from the public defender's office where Holden was associated may be able to act as technical advisor. The court then adjourned for the day.

The following morning, April 25, Alexander appeared as ordered. Holden explained that the doctor had performed a psychiatric examination of the defendant to determine whether the defendant had suffered from a mental defect that might serve as the basis for a defense, but that the doctor had not performed a competency evaluation pursuant to General Statutes § 54-56d. The court asked the doctor whether he had examined the defendant long enough to render an opinion as to his competency, and the doctor replied that in his opinion the defendant understood the nature of the charges pending against him and that he was able to assist in his own defense. The defendant also questioned the doctor, during which the defendant stated to the court that he had "not gotten along with [Holden's] tactics as far as being a public defender." Upon questioning by Holden, Alexander testified that he had examined the defendant for approximately forty minutes that morning, that he knew the defendant was planning to represent himself, and that his opinion of the defendant's competency was based on both the time he spent with the defendant that morning as well as his earlier evaluation of the defendant. Alexander also informed the court that a competency evaluation and a psychiatric evaluation involved many of the same procedures.

The court then requested attorney Hubert Bundock to act as the defendant's technical advisor, stating that a breakdown in communications had occurred between the defendant and Holden. The defendant insisted that whether he personally got along with Holden was not the issue, but that he wanted to represent himself because he didn't believe his case was being handled properly. Bundock stated that he felt the defendant had the intelligence but not the legal skill to defend himself. The court responded that it was obligated under Supreme Court precedent to allow the defendant to defend himself despite the fact that "it's against my better judgment as a lawyer, as a judge and as a human being to allow Mr. Blackwell to try his own case because I think he's hurting himself." The defendant again reaffirmed that he wanted to try his own case. ³ The court found the defendant to be competent to conduct his own defense, on the basis of Alexander's psychiatric examinations and the defendant's confidence in his own competence. Holden was relieved of his duties and Bundock was appointed as the defendant's technical advisor. Voir dire resumed and Bundock was made cocounsel with the defendant's consent. Following voir dire, the court explained that the trial would start the next day, that the prosecution would put on its witnesses first, and that either the defendant or Bundock could cross-examine the witnesses. The court then recessed.

The following morning, before motions were heard, the court explained to the defendant that cross-examination involved certain legal skills and that Bundock was well skilled in this area. The defendant stated that he wished to cross-examine witnesses himself, that he desired Bundock as an advisor rather than cocounsel, and that he understood that it took great legal skill in defending such a case. ⁴ Bundock again moved the court to reevaluate the defendant's competency, and the trial judge again found the defendant to be competent even though he had repeatedly warned the defendant that it was unwise to represent himself. ⁵

The trial then proceeded, first with pretrial motions, and then with the actual trial. During the trial, the defendant consulted with Bundock regarding both the direct and cross-examination of witnesses. Bundock conducted the cross-examination of one witness and the direct examination when the defendant testified on his own behalf. On Bundock's motion, the assault charge was dismissed and the court included in its jury charge a lesser included charge of attempted burglary. The defendant was convicted of two counts of attempted robbery.

The right to self-representation, long protected in the federal courts, was extended to defendants in state criminal trials in Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 2231, 45 L.Ed.2d 562 (1975). Our state constitution, article first, § 8, also guarantees this right: " 'In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel....' " State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I ). In order for a defendant to exercise this right of self-representation, he must voluntarily and intelligently waive his right to counsel. Faretta v. California, supra; Lyles v. Estelle, 658 F.2d 1015, 1018 (5th Cir.1981).

Practice Book § 961 ⁶ was adopted to implement the right of a defendant in a criminal case to act as his own attorney. Gethers I, supra. In construing § 961, our Supreme Court has stated: "Nothing more intricate than a voluntary and intelligent waiver of counsel is required of an accused to exercise his right to defend himself in person. Faretta v. California, supra, [422 U.S. at] 835 . '[A] defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation.... [H]is technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself.' Faretta v. California, supra, 835-36 . '[T]o also require a lawyer's expertise as a prerequisite to asserting the right would deny it to all but a small portion of society.' Lyles v. Estelle, supra, 1019." Gethers I, supra, 193 Conn. at 534, 480 A.2d 435.

Subsequently, in State v. Gethers, 197 Conn. 369, 376-77, 497 A.2d 408 (1985) (Gethers II ), our Supreme Court added that a defendant "should be made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " See Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942); see also Faretta v. California, supra, 422 U.S. at 835, 95 S.Ct. at 2239; Gethers I, supra.

In determining whether Practice Book § 961 has been complied with, we note that some deviation from a literal application of the rule will not defeat a defendant's right to defend himself. Gethers I, supra, 193 Conn. at 539-40, 480 A.2d 435. As our Supreme Court observed in Gethers I, in this situation, we are confronted with two fundamental rights of the accused: the right to counsel and the right to represent...