State v. Bush

• Decision Date: 18 April 2017
• Docket Number: SC 19492
• Citation: 157 A.3d 586,325 Conn. 272
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Richard BUSH

325 Conn. 272

157 A.3d 586

STATE of Connecticut

v.Richard BUSH

SC 19492

Supreme Court of Connecticut.

Argued October 12, 2016

Officially released April 18, 2017

Adam E. Mattei, assistant state's attorney, with whom were C. Robert Satti, Jr., supervisory assistant state's attorney, and, on the brief, John C. Smriga, state's attorney, Bridgeport, and for the appellant (state).

Pamela S. Nagy, assistant public defender, New Haven, for the appellee (defendant).

Rogers, C. J., and Palmer, Eveleigh, McDonald and Robinson, Js.^*

ROBINSON, J.

This certified appeal presents two significant issues, namely: (1) whether a court, in determining if sufficient evidence of an enterprise exists to sustain a conviction of racketeering in violation of the Corrupt Organizations and Racketeering Activity Act (CORA), General Statutes § 53–393 et seq., may consider the entire record, or is limited to the evidence concerning only those predicate "incidents of racketeering activity" found by the jury in the special verdict required by General Statutes § 53–396 (b) ;¹ and (2) the degree to which a trial court has discretion to deny a motion for a continuance filed by a criminal defendant that seeks time to prepare for trial after that defendant had elected, pursuant to Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to discharge his attorney and proceed as a self-represented party.

The state appeals, upon our grant of its petition for certification,² from the judgment of the Appellate Court reversing the judgment of the trial court, rendered after a jury trial, convicting the defendant, Richard Bush, of six counts of the sale of narcotics by a person who is drug-dependent in violation of General Statutes § 21a–277 (a), six counts of sale of narcotics within 1500 feet of a school by a person who is drug-dependent in violation of General Statutes §§ 21a–277 and 21a–278a (b), one count of conspiracy to sell narcotics in violation of General Statutes §§ 53a–48 and 21a–278 (b), and one count of racketeering in violation of General Statutes § 53–395 (c).³ State v. Bush , 156 Conn.App. 256, 258–59, 112 A.3d 834 (2015). On appeal, the state claims that the Appellate Court improperly concluded that: (1) the defendant was entitled to a judgment of acquittal with respect to the racketeering conviction because the two predicate acts of racketeering, identified by the jury pursuant to § 53–396 (b), did not constitute sufficient evidence of an enterprise; and (2) a new trial was required for the remaining offenses because the denial of a continuance effectively deprived the defendant of his right of self-representation. With respect to the racketeering conviction, we conclude that the Appellate Court improperly circumscribed its sufficiency of the evidence analysis by limiting it to the two predicate acts, but nevertheless properly determined that there was insufficient evidence to support the racketeering conviction. With respect to the other convictions, we conclude that the Appellate Court improperly determined that the denial of a continuance effectively deprived the defendant of his right of self-representation. Accordingly, we affirm in part and reverse in part the judgment of the Appellate Court.

The record and the opinion of the Appellate Court set forth the following background facts and procedural history. "The charges upon which the defendant was brought to trial were all based upon his alleged involvement in seven separate sales of cocaine to a police informant, David Hannon, during an undercover police investigation of illegal drug activity in the area of Pembroke and Ogden Streets in Bridgeport between late June through early November, 2010." Id., at 259, 112 A.3d 834. As will be discussed more fully in part I B of this opinion, during that time period, the investigating task force of officers from the Bridgeport Police Department and the Connecticut State Police obtained extensive audiotape and videotape surveillance footage of these sales, in which the defendant, working from the porch of his duplex home, which directly abutted the sidewalk on Pembroke Street, sold cocaine to Hannon, or facilitated sales to Hannon by six other drug dealers, namely, David Moreland, Jason Ortiz, Willie Brazil, Raymond Mathis, Carlos Lopez, and Kenneth Jamison.⁴

"In an amended long form information dated January 3, 2012, the state charged the defendant, more particularly, with: one count each of sale of narcotics by a person who is not drug-dependent and sale of narcotics within 1500 feet of a school by a person who is not drug-dependent in connection with each such alleged sale; and one count each of conspiracy to sell narcotics and racketeering based upon his alleged involvement in all seven such alleged sales, as specially pleaded both in the conspiracy count, as overt acts in furtherance of the alleged conspiracy, and in the racketeering count, as incidents of racketeering activity claimed to prove his involvement in a pattern of racketeering activity, as required by ... § 53–396 (a). The jury found the defendant guilty of the lesser included offenses of sale of narcotics by a person who is drug-dependent and sale of narcotics within 1500 feet of a school by a person who is drug-dependent based upon his proven involvement in sales of cocaine to Hannon on six of the seven dates specified in the information, particularly June 30, July 14, July 16, August 6, August 24, and November 9, 2010. It found him not guilty, however, of all charges based upon the alleged sale of drugs to Hannon on June 25, 2010, the first date specified in the information. The jury also found the defendant guilty of both conspiracy to sell narcotics and racketeering, specifying as to the latter charge, in a special verdict returned pursuant to § 53–396 (b), that the sole basis for its finding that the defendant had engaged in a pattern of racketeering activity as a member of an enterprise was his involvement in the sale of cocaine on two of the seven dates specified in the information, June 30 and November 9, 2010, which it found to have constituted ‘incidents of racketeering activity.’ The trial court later sentenced the defendant on all charges of which he was convicted to a total effective sentence of twenty years incarceration." (Footnote omitted.) Id., at 259–60, 112 A.3d 834.

The defendant appealed from the judgment of conviction to the Appellate Court. Although the defendant raised numerous claims on appeal, the Appellate Court only reached the two that it deemed dispositive.⁵ See id., at 259, 112 A.3d 834 n.2. Specifically, the Appellate Court first concluded that the defendant was entitled to a judgment of acquittal on the racketeering charge on the ground that "there was insufficient evidence to support his racketeering conviction because the state failed to prove either the existence of an enterprise formed for the common purpose of selling narcotics or that he was associated with such an enterprise." Id., at 265, 112 A.3d 834. The Appellate Court further concluded that a new trial was required with respect to the other charges because the trial court had abused its discretion in denying the defendant's request for a continuance after he elected, during jury selection, to represent himself. Id., at 288–89, 112 A.3d 834. This certified appeal followed. See footnote 2 of this opinion. Additional facts and procedural history will be set forth as necessary.

I

We begin with the state's claim that the Appellate Court improperly concluded that there was insufficient evidence to support the defendant's racketeering conviction. The record sets forth the following additional relevant facts and procedural history. Although the jury convicted the defendant of a total of six cocaine sales to Hannon that took place between the dates of June 30 and November 9, 2010, the Appellate Court noted that the special verdict form, rendered pursuant to § 53–396 (b), indicated that the "defendant's racketeering conviction was expressly predicated" on the two cocaine sales that occurred on June 30 and November 9, 2010.⁶

State v. Bush , supra, 156 Conn.App. at 263, 112 A.3d 834. The Appellate Court confined its analysis of the defendant's racketeering conviction only to the events of those two days. Id. It observed that, "[o]n June 30, 2010, Hannon met with members of a task force of officers from the Bridgeport Police Department and the Connecticut State Police Department to arrange for a controlled buy of cocaine from ... Ortiz at the defendant's home on Pembroke Street in Bridgeport. To that end, Hannon telephoned Ortiz before arriving at the defendant's home, and also telephoned the defendant's home phone number. Prior to Hannon's arrival at the defendant's home, Ortiz, who was then under surveillance by other members of the task force, went to the rear of the home, then returned to the front porch with a small blue bag in his hand, which he later put in his mouth.⁷ When Hannon arrived at the defendant's home, the defendant emerged from his backyard, walked past Hannon's vehicle while looking inside it, then continued to the street corner, where he gestured to Ortiz by raising his hand in the air. Ortiz then approached Hannon's vehicle and opened the door, whereupon the defendant came up behind Ortiz, reached inside the vehicle, and tapped hands with Hannon. Hannon gave Ortiz money, in exchange for which Ortiz gave Hannon the blue bag of cocaine that had been in his mouth. Meanwhile, another man approached the defendant. After completing the transaction with Hannon, when the defendant gestured ... once again, [and] Ortiz handed something to the other man in exchange for money. Ortiz and the defendant then walked together toward the defendant's backyard.⁸

"On November 9, 2010, Hannon met once again with task force members to prepare to buy drugs from the defendant. This time Hannon called the defendant, using the same cell phone number he had called on June 30, 2010, and...