State v. Carter, No. 12645

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; PETERS
• Citation: 200 Conn. 607,513 A.2d 47
• Parties: STATE of Connecticut v. Elton H. CARTER.
• Decision Date: 29 July 1986
• Docket Number: No. 12645

Page 47

513 A.2d 47 200 Conn. 607 STATE of Connecticut
v.
Elton H. CARTER. No. 12645. Supreme Court of Connecticut. Argued June 10, 1986.
Decided July 29, 1986.

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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 [200 Conn. 608] 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 [200 Conn. 609] 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

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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 [200 Conn. 610] 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 [200 Conn. 611] 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

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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[200 Conn. 612] 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...