State v. Carter, 12645

Decision Date29 July 1986
Docket NumberNo. 12645,12645
Citation200 Conn. 607,513 A.2d 47
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Elton H. CARTER.

Andrew B. Bowman, Westport, for appellant (defendant).

Christopher Malany, Deputy Asst. State's Atty., with whom, on the brief, were Eugene J. Callahan, State's Atty., Henry Weller, Special State's Atty. and David Cohen, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and FRANCIS X. HENNESSY, JJ.

PETERS, Chief Justice.

The dispositive issue on this appeal is whether the defendant properly invoked his constitutional right to represent himself at the trial of the criminal charges against him. The defendant, Elton Carter, was convicted by a jury of one count of attempted murder, in violation of General Statutes §§ 53a-49(a) 1 and 53a-54a(a), 2 one count of assault in the first degree, in violation of General Statutes § 53a-59, 3 and one count of reckless endangerment in the first degree, in violation of General Statutes § 53a-63, 4 and sentenced to imprisonment for an effective term of twenty years. The defendant appeals from this judgment. We find no error.

The jury might reasonably have found the following facts. The defendant was an employee of Phillips Dental Systems in Stamford. On the morning of November 18, 1983, he refused to begin his work at the plant unless and until he had been afforded an opportunity to discuss the conditions of his employment and a contemplated pay raise with the company's personnel manager. Since the personnel manager had not yet arrived at the plant, the defendant was told by the operations manager either to begin working, pending the personnel manager's arrival, or to go home. Instead, the defendant entered the company's executive office area. The operations manager followed the defendant. Thereupon, the defendant shot the operations manager, and later beat him with a crowbar. He also shot two other individuals who were in the area. Immediately after these events, the defendant left the company facilities in his own car. He stopped at the Mill River to throw away the gun that he had been using. Driving to the home of a friend, he talked with her for some hours and then voluntarily surrendered to the police.

At trial, the defense was insanity. Rejecting this defense, the jury found the defendant guilty on three of the four counts with which he had been charged. The trial court denied the defendant's motions for acquittal.

On appeal, the defendant claims that the trial court erred in two respects, in its instructions to the jury on the issue of insanity and in its denial of the defendant's constitutional right to represent himself. Neither claim is sustainable on the record of this case.

The defendant asks us to review the trial court's instructions on insanity even though, at trial, he requested no specific instruction on insanity and failed to except to the instruction that was given. He concedes that the trial court's instruction included a charge on insanity that incorporated the definition of insanity set forth in our statute; General Statutes § 53a-13(a); 5 but claims that the instruction was erroneous because of its inclusion of extraneous considerations not encompassed within the statutory definition. We have only recently considered the question of whether such a claim is reviewable when it was not properly raised at trial, and we have determined that it is not. Practice Book §§ 854, 3063; 6 State v. Carter, 198 Conn. 386, 396-97, 503 A.2d 576 (1986); State v. Jackson, 198 Conn. 314, 320-21, 502 A.2d 865 (1986); State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985); State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985). The only factor that possibly distinguishes the defendant's case from these precedents is that he was tried at a time when the burden of proving insanity had been shifted, by statute, to the defendant; see General Statutes § 53a-13; Public Acts 1983, No. 83-486, § 1; whereas previously the state had borne the burden of proving a defendant's sanity. For present purposes, this is a distinction without a difference.

The defendant's claim that he was denied his constitutional right to self-representation equally founders on the lack of a proper foundation in the record. At trial, the defendant repeatedly expressed his dissatisfaction with the representation that he was receiving from his public defender. He asked that this attorney be dismissed and that a special public defender be appointed. He expressed his concern that his public defender was not properly examining prosecution witnesses so as to expose the alleged falsity of their testimony, and complained that the public defender did not want him to testify. In the course of that colloquy with the court, he stated: "I am misrepresented and now I have to represent myself." A few moments later, after the trial court had asked the defendant to be seated so that the trial could begin, the defendant reiterated, "I'll have to represent myself." Although he subsequently reiterated his desire to question a witness, that request was again couched in terms of his request for a different public defender. Thereafter, he raised no further objections to the adequacy of his representation and did avail himself of his right to testify on his own behalf.

There is no doubt that a defendant has a right under both the state and the federal constitutions 7 to represent himself at his criminal trial. Faretta v. California 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II); State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I); State v. Johnson, 185 Conn. 163, 178, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983); State v. Beaulieu, 164 Conn. 620, 630, 325 A.2d 263 (1973); see also Practice Book § 961. 8 The constitutional right of self-representation depends, however, upon its invocation by the defendant in a clear and unequivocal manner. Faretta v. California, supra, 422 U.S. 835, 95 S.Ct. 2541; Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), cert. denied, 469 U.S. 966, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984); Moreno v. Estelle, 717 F.2d 171, 174 (5th Cir.1983), cert. denied sub nom. Moreno v. McKaskle, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984); United States v. Bennett, 539 F.2d 45, 50 (10th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976); State v. Gethers (Gethers II), supra, 197 Conn. 377-378, 497 A.2d 408; State v. Hanson, 138 Ariz. 296, 300, 674 P.2d 850 (App.1983); People v. Windham, 19 Cal.3d 121, 127-28, 560 P.2d 1187, 137 Cal.Rptr. 8, cert. denied, 434 U.S. 848, 98 S.Ct. 157, 54 L.Ed.2d 116, reh. denied, 434 U.S. 961, 98 S.Ct. 495, 54 L.Ed.2d 322 (1977); Hooks v. State, 416 A.2d 189, 197 (Del.1980); Raulerson v. State, 437 So.2d 1105, 1107 (Fla.1983); Russell v. State, 270 Ind. 55, 61, 383 N.E.2d 309 (1978); State v. Hegwood, 345 So.2d 1179, 1182 (La.1977); State v. Crafts, 425 A.2d 194, 196 (Me.1981); Leonard v. State, 302 Md. 111, 124, 486 A.2d 163 (1985); Commonwealth v. Miller, 6 Mass.App. 959, 960, 383 N.E.2d 1144 (1978); State v. Barham, 126 N.H. 631, 638-39, 495 A.2d 1269 (1985); Gregory v. State, 628 P.2d 384, 387 (Okla.Cr.1981); State v. Fritz, 21 Wash.App. 354, 360, 585 P.2d 173 (1978); State v. Sheppard, 310 S.E.2d 173, 187-89 (W.Va.1983).

In the absence of a clear and unequivocal assertion of the right to self-representation, a trial court has no independent obligation to inquire into the defendant's interest in representing himself, because the right of self-representation, unlike the right to counsel, is not a critical aspect of a fair trial, but instead affords protection to the defendant's interest in personal autonomy. State v. Hanson, supra, 138 Ariz. 300, 674 P.2d 850; People v. Salazar, 74 Cal.App.3d 875, 888-89, 141 Cal.Rptr. 753 (1977); People v. Clark, 94 Ill.App.3d 295, 297, 49 Ill.Dec. 871, 418 N.E.2d 891 (1981); Russell v. State, supra, 270 Ind. 60, 383 N.E.2d 309; State v. Burgin, 539 S.W.2d 652, 653-54 (Mo.App.1976); Block v. State, 95 Nev. 933, 936, 604 P.2d 338 (1979); State v. Hutchins, 303 N.C. 321, 337-38, 279 S.E.2d 788 (1981). 9 When a defendant's assertion of the right to self-representation is not clear and unequivocal, recognition of the right becomes a matter entrusted to the exercise of discretion by the trial court. State v. Irving, 231 Kan. 258, 265, 644 P.2d 389 (1982); State v. Burgin, supra, 654; State v. Sheppard, supra, 187. In the exercise of that discretion, the trial court must weigh into the balance its obligation to "indulge in every reasonable presumption against waiver" of the right to counsel. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977).

The record in this case fails to establish a clear and unequivocal invocation of the defendant's right to represent himself. The record demonstrates, instead, the defendant's dissatisfaction with appointed counsel's conduct during the early phases of the trial, and the defendant's misconception of the normal sequence of the presentation of evidence by the state and the defendant. A trial court, faced with the responsibility of reconciling a defendant's inherently inconsistent rights to self-representation and to counsel, is entitled to await a definitive assertion of a request to proceed pro se. Any other ruling would permit a defendant on appeal to claim a violation of his rights whether he defended himself or was represented by an attorney. Meeks v. Craven, 482 F.2d 465, 467 (9th Cir.1973); State v. Hanson, supra, 138 Ariz. 300, 674 P.2d 850. Courts in other jurisdictions have therefore been unwilling to find a clear and unequivocal assertion of the right of self-representation in such ambiguous circumstances. Moreno v. Estelle, supra, 175-76; People v. Salazar, supra, 74 Cal.App.3d 889,...

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