State v. Crawley, No. 32610.

• Decision Date: 11 September 2012
• Docket Number: No. 32610.
• Citation: 50 A.3d 349,138 Conn.App. 124
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Scott A. CRAWLEY.

138 Conn.App. 124

50 A.3d 349

STATE of Connecticut

v.Scott A. CRAWLEY.

No. 32610.

Appellate Court of Connecticut.

Argued May 14, 2012.

Decided Sept. 11, 2012.

Glenn W. Falk, special public defender, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Kathleen A. Dwyer, senior assistant state's attorney, for the appellee (state).

GRUENDEL, BEAR and BISHOP, Js.

GRUENDEL, J.

The defendant, Scott A. Crawley, appeals from the judgments of conviction, rendered following a jury trial, of various offenses related to two separate incidents. On appeal, the defendant claims that the trial court (1) improperly proceeded with the trial in his absence without ascertaining that he validly waived his right to confrontation, (2) failed to grant a continuance to allow him to obtain alternative counsel and (3) failed to hold a second competency hearing.¹ We affirm the judgments of the trial court.

The defendant's appeal involves two files for offenses committed during two separate incidents. The first file pertained to charges against the defendant arising from a May 23, 2002 incident (first case), with docket numbers CR–02–0183551–S and MV–02–0346006–S, and the second file pertained to those charges against the defendant arising from a September 5, 2002 incident (second case), with docket numbers CR–02–0185248–S and MV–02–0383935–S. The two files were consolidated and were to be tried jointly before a jury. On March 9, 2004, after the jury had been selected and just before the presentation of evidence was to begin, the defendant appeared before the court outside of the presence of the jury. He informed the court that attorney Terri Bayer representedhim in the first case, and not attorney Donald Freeman, who was present. The courtroom clerk noted that there was an undated appearance from Bayer and that Freeman had filed an appearance on October 24, 2002, in lieu of attorney John Hyde, a colleague of Bayer's. The defendant reiterated that Bayer was his lawyer, that he had written her a letter and that Freeman was not his lawyer. Freeman stated that in October, he had conversations with the defendant and Hyde and agreed to file an appearance in lieu of Hyde in the first case. The state agreed that the only appearance in its file was for Freeman and that it was for both cases.

The court took a ten minute recess and requested that the court clerk's office contact Bayer's office to determine whether either Bayer or Hyde represented the defendant. The defendant began “acting up” with the courtroom marshal, and the court instructed the marshal to remove the defendant from the courtroom. Following the recess, the court warned the defendant that his behavior earlier interrupted the proceedings and that continued disturbances would not be tolerated. The court told the defendant that if he continued to conduct himself in such a manner, he would be removed from the courtroom and would not be able to participate in the trial. The court also asked the defendant if he understood. The defendant replied that he did.

The court then informed the defendant that the clerk's office had reached Hyde and that it was his position that neither he nor Bayer represented the defendant in the matter. The defendant stated that Freeman did not represent him, either, and that he needed to obtain new counsel. The court informed the defendant that Freeman did represent him, as he had filed an appearance. The defendant disputed that, stating that he had a say in who would be his attorney. The court informed the defendant that he indeed did have a say in who would be his attorney, but only up until the time of trial, after which he needed a continuance from the court to hire new counsel. The defendant stated that he wanted to hire different counsel. The court denied the request because (1) the case had been pending since May, 2002, (2) Freeman's appearance had been in the file since October 24, 2002, (3) the case already had been continued thirteen or fourteen times and (4) Hyde did not appear for the defendant on any of those continuances, nor did anyone else from his firm. The court concluded that because the jury had been selected and the presentation of evidence was to commence that morning, Freeman would continue to represent the defendant.

Thereafter, a discussion ensued about whether the defendant wanted to accept the state's plea offer rather than proceed to trial. The defendant did not accept the offer. The court then asked the parties whether there was anything further before it brought in the jury. The court and the defendant had another exchange about Freeman that culminated in the defendant's leaving the courtroom.² Freeman subsequently made an oral motion for a competency examination pursuant to General Statutes § 54–56d (c), which the court denied.

The defendant was not present during the direct or cross-examination of any of the witnesses. As to the first case, the jury found the defendant guilty of possession of marijuana in violation of General Statutes § 21a–279 (c), possession of drug paraphernalia in violation of General Statutes § 21a–267, operation of a motor vehicle while his license was under suspension in violation of General Statutes § 14–215(a) and two counts of interfering with a police officer in violation of General Statutes § 53a–167 (a). The jury also found the defendant guilty of possession of narcotics in violation of § 21a–279 (a), possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b) and operation of a motor vehicle while his license was under suspension in violation of § 14–215(a) related to the second case.

Pursuant to a part B information, the court found that the defendant committed the offenses related to the second case while on release, thereby subjecting him to a sentence enhancement pursuant to General Statutes § 53a–40b. On June 3, 2004, the court imposed a total effective sentence of twenty-seven years incarceration. Following a trial on the merits, a habeas court restored the defendant's appellate rights on May 17, 2010. This appeal followed. Additional factual and procedural history will be set forth as necessary.

I

The defendant claims first that the court improperly continued the trial in his absence without ascertaining that he validly waived his sixth amendment right to confrontation. We disagree.

The defendant affirmatively requests review of this claim pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). ³ We review the defendant's claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Peeler, 271 Conn. 338, 369 n. 29, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005). We determine, however, that the defendant waived his right to be present during the trial and conclude that the alleged constitutional violation therefore fails to satisfy the third prong of Golding.

“It has long been settled that an accused enjoys a right both at common law and pursuant to the sixth amendment's confrontation clause to be present at all stages of trial.... It is also well settled that under the due process clauses of the fifth and fourteenth amendments a defendant must be allowed to be present at his trial to the extent that a fair and just hearing would be thwarted by his absence.... Nevertheless, the defendant's presence is not required when the right is waived. Waiver in this context is addressed both in our rules of practice and in our case law.

“Under our rules of practice, the trial court in its discretion may exclude the defendant if it determines that the defendant waived his right to be present or if the defendant's absence is justified due to his or her conduct. Practice Book § 44–8 provides in relevant part: The defendant must be present at the trial and at the sentencing hearing, but, if the defendant will be represented by counsel at the trial or sentencing hearing, the judicial authority may: (1) Excuse the defendant from being present at the trial or a part thereof or the sentencing hearing if the defendant waives the right to be present; (2) Direct that the trial or a part thereof or the sentencing hearing be conducted in the defendant's absence if the judicial authority determines that the defendant waived the right to be present....

“Relevant cases instruct that [a] defendant in a criminal prosecution may waive one or more of his or her fundamental rights.... In [ State v.] Patterson [230 Conn. 385, 396, 645 A.2d 535 (1994) ], our Supreme Court stated that [i]n some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made.... In other circumstances, waiver can be implied.... Our Supreme Court has ... held that a defendant may waive his constitutional right to be present during trial merely by an unexplained absence....

“In discussing the circumstances in which a valid waiver might be present, our Supreme Court noted that [w]hether there has been an intelligent and competent waiver of the right to presence must depend, in each case, upon the particular facts and circumstances surrounding that case.... [A] waiver of the right to be present at a criminal trial may be inferred from certain conduct engaged in by the defendant after the trial has commenced.” (Citations omitted; internal quotation marks omitted.) State v. Vines, 71 Conn.App. 751, 767–68, 804 A.2d 877 (2002), aff'd, 268 Conn. 239, 842 A.2d 1086 (2004). “[A] trial court need not engage in a colloquy with a defendant expressly focused on the defendant's understanding of his right to be present to determine that a waiver of the right of presence was valid. Rather, the court may infer the defendant's waiver from the totality of his acts and conduct, so long as the defendant has been adequately informed...