State v. Braswell

• Decision Date: 10 September 2013
• Docket Number: No. 33053.,33053.
• Citation: 145 Conn.App. 617,76 A.3d 231
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Velmon Danny BRASWELL.

145 Conn.App. 617

76 A.3d 231

STATE of Connecticut

v.Velmon Danny BRASWELL.

No. 33053.

Appellate Court of Connecticut.

Argued June 3, 2013.

Decided Sept. 10, 2013.

Alice Osedach, assistant public defender, for the appellant (defendant).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michelle Manning, assistant state's attorney, for the appellee (state).

LAVINE, ALVORD and SCHALLER, Js.

LAVINE, J.

The defendant, Velmon Danny Braswell, appeals from the judgment of conviction, rendered after a jury verdict, of kidnapping in the second degree in violation of General Statutes § 53a–94 and interfering with an officer in violation of General Statutes § 53a–167a. On appeal, the defendant claims that the trial court (1) violated his federal and state constitutional rights to represent himself (a) before trial and (b) during the course of trial,¹ and (2) improperly denied his motion to suppress evidence seized from his (a) home and (b) person. We conclude that the court properly denied the defendant's motion to suppress evidence but erred by denying on improper grounds his motion to represent himself.² We reverse the judgment and remand the case for a new trial.

The jury reasonably could have found the following facts. At dusk on October 21, 2009, Emily Person was walking her dog on Stone Street in Stamford. As she passed 58 Stone Street, her dog ran up to the defendant, whom Person knew as Danny King. The defendant petted the dog and then picked it up. He lured Person closer to him by telling her that there was something in the dog's mouth. When Person approached him, the defendant grabbed her wrist, lifted her up, and carried her toward the rear of 58 Stone Street. When Person screamed, the defendant put his hand over her mouth and told her to be quiet. Person bit hard on one of the defendant's fingers. The defendant released Person, who ran to her home at 50 Stone Street. Person told her older sister, Tasha, what had transpired and reported the incident to police.

Officers James McGrath and Henry Wendel responded and interviewed Person at her home. Person described the individual who had grabbed her as a black male with a bald head and no facial hair, who was wearing a blackish shirt. She also told the police that she knew the man as Danny King. Thereafter, the officers went to 58 Stone Street and knocked on the front door, which was a common entry to the first and second floors. A door in the entryway led to the second floor. Two women answered the door and informed the officers that a person who fit their description of the suspect lived on the second floor. The police knocked on the door to the second floor, but no one answered. The women took the police to the rear of the building, where there was an entrance to the first floor and a back stairway. McGrath noticed the light in the back foyer quickly turn on and off. He also heard someone running up the stairs. He called for police backup. While he was waiting for additional officers to arrive, McGrath and Wendel heard someone running and doors slamming on the second floor. McGrath also heard a loud bang, as if something had been dropped.

After the backup officers arrived, the police entered the second floor apartment. McGrath noticed blood on the knob of the door leading to the second floor apartment, on a light switch, and on a wall. On the second floor, the officers saw a common area consisting of a living room, kitchen, and dining room with bedrooms around the perimeter.³ The officers also observed a chair that had been moved from the dining table and placed under a hatch to the attic. The officers believed that the defendant was hiding in the attic and instructed him to come out. The defendant did not respond to the officers' commands. To enter the attic, which was dark, the officers secured the assistance of the fire department, which provided a ladder and lights. Five officers entered the attic and observed an arm and leg protruding from under insulation placed between the joists. The defendant ignored the officers' commands to “come out.” The officers therefore removed the defendant from between the joists. The defendant made his body tense, which required the officers to use force to handcuff him. The officers noticed a laceration on the defendant's finger that was consistent with Person's account of having bitten the defendant's finger. The officers took the defendant to the front of 58 Stone Street where Person, after asking the defendant to speak, identified him as the man who had attacked her.

The defendant was taken to the police station to be “processed.” In the meantime, Officer Edward Rondano collected evidence from the second floor of 58 Stone Street and from the blood on the exterior of the door leading to the second floor. Rondano also collected evidence from the defendant's bloodied finger. The blood samples were analyzed for the presence of Person's DNA. ⁴

At trial, Patricia Johannes, a forensic science examiner, testified about the results of the DNA testing. The blood evidence taken from the door to the second floor of 58 Stone Street and the defendant's finger contained Person's DNA. After the jury found the defendant guilty, the court imposed an effective sentence of twelve years incarceration followed by eight years of special parole. Additional facts will be provided as needed.

I

The defendant claims that the court violated his state and federal constitutional rights to self-representation ⁵by denying his motion to dismiss his appointed counsel and to represent himself.⁶ The defendant contends that his requests to represent himself were timely, clear and unequivocal; the state does not disagree. We conclude that the court denied the defendant's motion to represent himself on improper grounds. When ruling on a motion for self-representation, the court must determine whether the criminal defendant's waiver of the constitutional right to counsel is knowingly and intelligently made. See Practice Book § 44–3.⁷

We begin with a recitation of the principles regarding a criminal defendant's right to represent himself. “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense. The sixth amendment right to counsel is made applicable to state prosecutions through the due process clause of the fourteenth amendment.... [T]he United States Supreme Court [has] concluded that the sixth amendment embodies a right to self-representation and that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Flanagan, 293 Conn. 406, 417, 978 A.2d 64 (2009).

“[T]he [c]onstitution does not force a lawyer upon a defendant. He may waive his [c]onstitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Our Supreme Court has recognized “the inviolability of the right of self-representation.” State v. Brown, 256 Conn. 291, 302, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S.Ct. 670, 151 L.Ed.2d 584 (2001). “To force a lawyer on a defendant can only lead him to believe that the law contrives against him.... The right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins.... Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel.” (Citation omitted; internal quotation marks omitted.) State v. Flanagan, supra, 293 Conn. at 418, 978 A.2d 64.

“Although a defendant need not have the skill and expertise of an attorney to competently and intelligently choose to proceed pro se, a record that affirmatively shows that [he] was literate, competent, and understanding, and that he was voluntarily exercising his informed free will sufficiently supports a waiver.” (Internal quotation marks omitted.) Id. at 419, 978 A.2d 64. “[O]nce there has been an unequivocal request for self-representation, a court must undertake an inquiry [pursuant to Practice Book § 44–3], on the record, to inform the defendant of the risks of self-representation and to permit him to make a knowing and intelligent waiver of his right to counsel.” (Internal quotation marks omitted.) State v. Jordan, 305 Conn. 1, 14, 44 A.3d 794 (2012). “[W]hether the defendant's request was clear and unequivocal presents a mixed question of law and fact, over which ... our review is plenary.” State v. Flanagan, supra, 293 Conn. at 420, 978 A.2d 64.

Practice Book § 44–3 “was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney.... Before a trial court may accept a defendant's waiver of counsel, it must conduct an inquiry in accordance with § [44–3], in order to satisfy itself that the defendant's decision to waive counsel is knowingly and intelligently made.... Because the § [44–3] inquiry simultaneously triggers the constitutional right of a defendant to represent himself and enables the waiver of the constitutional right of a defendant to counsel, the provision of § [44–3] cannot be construed to require anything more than is constitutionally mandated.” (Internal quotation marks omitted.) Id. at 419, 978 A.2d 64.

“[A]ssuming ... that a defendant's request to [represent himself] is informed, voluntary and unequivocal, [his right] to act as his own lawyer is unqualified if invoked prior to the...