State v. Cohens

• Decision Date: 20 March 2001
• Docket Number: (AC 19366)
• Citation: 62 Conn. App. 345,773 A.2d 363
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ERIC COHENS

62 Conn. App. 345

773 A.2d 363

STATE OF CONNECTICUT v. ERIC COHENS

(AC 19366)

Appellate Court of Connecticut.

Argued October 23, 2000.

Officially released March 20, 2001.

Spear, Mihalakos and Freedman, Js. David V. DeRosa, special public defender, for the appellant (defendant).

Christopher T. Godialis, assistant state's attorney, with whom, on the brief, were Eugene Callahan, state's attorney, and Matthew Couloute, Jr., assistant state's attorney, for the appellee (state).

Opinion

MIHALAKOS, J.

The defendant, Eric Cohens, appeals from the judgment of conviction following a trial to the jury. He was charged with two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b)¹ and two counts of sale of narcotics by a person who is not drug-dependent within 1500 feet of a school in violation of General Statutes § 21a-278a (b).² At the close of the state's evidence, the trial court granted the defendant's motion for a judgment of acquittal on one count each of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b) and sale of narcotics by a person who is not drug-dependent within 1500 feet of a school in violation of § 21a-278a (b). The jury found the defendant guilty of one count each of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b) and sale of narcotics within 1500 feet of a school by a person who is not drug-dependent in violation of § 21a-278a (b).

On appeal, the defendant raises four claims. The defendant first claims that the court violated his due process rights as guaranteed by the fourteenth amendment to the United States constitution and by the constitution of Connecticut in failing to grant his motion for a judgment of acquittal as to the charges of which he was convicted because the evidence presented was insufficient to support a conviction under §§ 21a-278 and 21a-278a. The defendant next claims that the court violated his right to counsel under the sixth amendment to the United States constitution,³ article first, § 8, of the constitution of Connecticut,⁴ General Statutes § 51-296,⁵ and Practice Book § 44-1⁶ in that the court failed to obtain his waiver of his right to counsel and failed to canvass him in accordance with Practice Book § 44-3⁷ to determine if he was making a knowing and intelligent waiver of his right to counsel. The defendant's third claim is that Practice Book § 44-5⁸ does not serve the interest of justice in that it does not allow a defense attorney to assume a proactive role as standby counsel in a trial. The defendant's final claim is that the court abused its discretion when it submitted a transcript to the jury of the November 20, 1998 proceedings without redacting comments the court made to the defendant, outside the jury's presence, regarding his ability to represent himself.

We conclude that the evidence was sufficient to sustain the conviction, but we reverse the judgment because the defendant's right to counsel was violated. In view of the reversal, it is not necessary for us to address the defendant's other claims, as they are unlikely to arise in the new trial.

The jury reasonably could have found the following facts. On March 17, 1998, the Norwalk police department special services unit was investigating the sale of illegal narcotics at a grocery store that was a well known site of drug trafficking and was within 1500 feet of a school. Officer Peter White observed the defendant make a telephone call, walk into the grocery store and come out carrying a small bag. White then saw a man approach the defendant. The man spoke to the defendant and handed him some cash. In exchange, the defendant pulled a small item from his pocket and handed it to the man. The man then walked away. He was immediately arrested one block from the grocery store. A piece of crack cocaine was found clenched in the man's fist. The defendant also was arrested within one block of the grocery store. One hundred forty-five dollars in cash was found on his person at the time of his arrest.

I

The defendant claims that the court violated his right to counsel under the sixth amendment to the United States constitution, article first, § 8, of the constitution of Connecticut, General Statutes § 51-296 and Practice Book § 44-1 by ordering him to represent himself, failing to obtain a waiver of his right to counsel and, in the alternative, by failing to canvass him to determine if he was making a knowing and intelligent waiver of his right to counsel in accordance with Practice Book § 44-3. We agree.

Because the defendant concedes that his claim is unpreserved, he asks for review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The first two steps in the Golding analysis address the reviewability of the claim, whereas the last two steps address the merits of the claim. State v. Hafford, 252 Conn. 274, 305, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). With regard to the first condition of Golding, we conclude that the record is adequate for review. We next turn to the second condition of Golding, that is, whether the defendant's claim is of constitutional magnitude alleging the violation of a fundamental right. We conclude that it is a claim of constitutional magnitude. See Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); State v. Piorkowski, 243 Conn. 205, 214-15, 700 A.2d 1146 (1997).

The following facts are relevant to the consideration of the defendant's second claim. On October 21, 1998, the defendant appeared before the court, Dean, J., for scheduling. The defendant was represented by special public defender Stephen M. Feinstein. Feinstein informed the court that the defendant would not discuss plea negotiations with him. Also, the defendant informed the court that Feinstein was not representing him correctly. The court then stated, "I'll tell you what we're going to do, set it down for a trial date, and you appear with him and sit next to him, and you can try your own case, but you will have a lawyer next to you." The court then appointed Feinstein to serve as standby counsel for the defendant. The court explained Feinstein's function to the defendant, stating, "You're going to have a lawyer sitting next to you in the trial. And if you want to talk to him, you can talk. If you don't want to talk, you don't have to, that's the way it's going to be."

Jury selection began on November 17, 1998, before the court, Rodriguez, J., Feinstein informed the court that the defendant would be representing himself and that he, Feinstein, would serve as standby attorney. The court expressed concern about the defendant's self-representation and asked the defendant if he would like to hire a private attorney. The defendant stated that he wanted a different public defender to be appointed to his case because he did not believe that Feinstein was doing a good job. The court told the defendant that he had not offered a reason that would entitle him to new appointed counsel. Jury selection proceeded with the defendant representing himself.

The court began the second day of jury selection by canvassing the defendant and stating, "I know all people are not the same, and I am not saying that you can't represent yourself, Mr. Cohens. I have to have this discussion with you because I have to make certain findings because I don't know if certain findings were made before when you were in front of another judge. I want to be comfortable with this because I don't agree with your decision to represent yourself." After questioning the defendant regarding his background and understanding of the charges against him, the court allowed him to continue representing himself.

Practice Book § 44-3 sets forth the requirements surrounding a criminal defendant's waiver of the assistance of counsel at trial. The presiding judge first must make a thorough inquiry of the defendant and must be satisfied that the defendant (1) was clearly advised of his right to the assistance of counsel, (2) has the intelligence and capacity necessary to understand the consequences of his decision to represent himself, (3) understands the nature of the charges against him, the court proceedings, the range of possible punishments to which he will be subjected and any further facts necessary to a broad understanding of the case, and (4) has been apprised of the dangers and disadvantages of representing himself.

In this case, the appropriate time for a trial judge to have ascertained all of the aforementioned factors and obtained the defendant's waiver of his right to the assistance of counsel was during the defendant's pretrial court appearance before Judge Dean. The state did not present any evidence that Judge Dean either canvassed the defendant or obtained a knowing waiver from him, and Judge Rodriguez did not canvass the defendant until the second day of jury selection. As a result of the actions of the court, Dean, J., the defendant was deprived of counsel who could have prepared for trial. The defendant also was deprived of counsel at a critical stage of the proceedings—the selection of the jury. See State v. Gethers, 197 Conn. 369, 375-76, 497 A.2d 408 (1985). That deprivation of counsel created a structural defect in the trial proceedings and mandates reversal of the judgment of conviction. See State v. Anderson, 255 Conn. 425, 445, 773 A.2d 287 (2001).

The sixth amendment to the United States constitution provides in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defense." "Article first, § 8, of the constitution of Connecticut, which is textually similar to the sixth amendment to the federal constitution, provides in relevant part that `[i]n all criminal prosecutions, the accused shall have [a] right to be heard by himself and by...