State v. Cushard, SC 19708

• Decision Date: 17 April 2018
• Docket Number: SC 19708
• Citation: 181 A.3d 74,328 Conn. 558
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Robert CUSHARD

328 Conn. 558

181 A.3d 74

STATE of Connecticut

v.Robert CUSHARD

SC 19708

Supreme Court of Connecticut.

Argued October 18, 2017

Officially released April 17, 2018

Daniel J. Krisch, assigned counsel, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Dawn Gallo, supervisory assistant state's attorney, for the appellee (state).

Palmer, McDonald, Robinson, D'Auria and Vertefeuille, Js.

D'AURIA, J.

In this certified appeal, we consider whether the defendant is entitled to a new trial following an allegedly inadequate waiver of the right to counsel. The defendant, Robert Cushard, was charged with crimes stemming from the robbery of an antiques dealer in New Hartford. Several months before his trial, the defendant moved to discharge his appointed public defender and to represent himself. The trial court granted the motion after canvassing the defendant about his decision. About four months later, the trial court canvassed the defendant a second time about whether he wanted to represent himself, and the defendant maintained that he did. After a trial, a jury found him guilty of certain crimes in connection with the robbery, and the trial court rendered judgment consistent with the verdict.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming in part that his initial waiver of the right to counsel was not knowing and voluntary because the first canvass was inadequate and that he was thus deprived of his sixth amendment right to counsel. He argued that a new trial was mandated as a remedy for this alleged sixth amendment violation without the need to show any harm. The Appellate Court agreed that the first canvass was deficient but declined to grant a new trial. State v. Cushard , 164 Conn. App. 832, 840, 137 A.3d 926 (2016). Instead, the Appellate Court concluded that the error in the first canvass was subject to harmless error analysis. Id., at 855, 137 A.3d 926.

According to that court, reversing the judgment was unnecessary because the defendant's lack of counsel before trial was harmless inasmuch as he was canvassed a second time, before trial, and maintained his choice to represent himself; therefore, the defendant had failed to identify any harm flowing from his earlier, inadequate waiver of the right to counsel that rendered his trial fundamentally unfair. Id., at 855–57, 137 A.3d 926.

We do not consider whether the defendant had knowingly and voluntarily waived the right to counsel after the first canvass because we agree with the Appellate Court that any error in the court's acceptance of his waiver of the right to counsel following that canvass was subject to harmless error review and was harmless beyond a reasonable doubt as a result of the second, adequate canvass. We therefore affirm the judgment of the Appellate Court.

The record contains the following facts, which the jury reasonably could have found, and additional procedural history. The robbery at issue occurred on August 2, 2011. The defendant had arranged to sell some items to the victim, an antiques dealer with whom he had previously done business. Shortly after arriving at the dealer's store, the defendant grabbed a wrench that was in the store, hit the dealer over the head, and threatened to stab him with a sharp object (apparently an awl). The defendant demanded money from the dealer, who reached into his pocket and handed the defendant about $600 to $800 in cash, along with his driver's license and credit cards. The defendant took the money and fled the store. The dealer, bleeding and dizzy from the blow to the head, was taken to the hospital for treatment. The attack caused him to permanently lose all hearing in his right ear and partial hearing in his left ear. He also has difficulty with his balance and has lost much of his senses of smell and taste.

Two days after the robbery, on August 4, 2011, the defendant was arrested and charged in connection with the crime. He was arraigned the following day. During the arraignment, the court appointed Christopher Cosgrove, a public defender, to represent the defendant. The state summarized the factual basis for the charges, and the trial court set bond. The defendant was unable to post the bond, so he remained incarcerated.

Several months later, in December, 2011, Cosgrove moved for a competency evaluation of the defendant; see General Statutes § 54–56d ; explaining that his interactions with the defendant led him to question whether the defendant could participate in his own defense. The trial court granted the motion and ordered an evaluation. Following the evaluation results, the court found the defendant incompetent to stand trial but that he was capable of being restored to competency and ordered treatment. In April, 2012, the trial court heard evidence regarding the status of the defendant's competency and treatment. Relying on a follow-up evaluation of the defendant, the court determined that he was competent to stand trial and had simply been unwilling to cooperate in the evaluations and proceedings. The defendant does not challenge on appeal any finding related to his competency.

About five months after being declared competent, the defendant, on his own, filed two motions: a motion to represent himself and a motion for a speedy trial. The defendant attached two letters that Cosgrove had sent to him. Cosgrove's letters recounted that the defendant demanded to go to trial as quickly as possible but had refused to speak with Cosgrove about his case or to cooperate in preparing a defense. The letters also expressed Cosgrove's concern that the defendant's recalcitrance hindered Cosgrove's ability to prepare for trial, and they explained that the defendant could hire a different attorney or represent himself if he did not want to work with Cosgrove.¹

The trial court canvassed the defendant concerning his motion to represent himself on October 10, 2012 (October, 2012 canvass). When asked about the basis for his motion, the defendant replied that he wanted to go to trial, that Cosgrove did not know the "circumstances of [his] case," that he and Cosgrove had not discussed the case in the past year, and that he did not feel he was "getting a fair shake" and was being "bamboozled." When asked whether he wanted to respond, Cosgrove replied: "I think the motion ... speaks for itself. I can tell you that [the defendant] has expressed this to me on a number of occasions, both in person and in writing." The trial court then questioned the defendant about his preparedness to represent himself, his understanding of the dangers of doing so, and his knowledge that he could keep Cosgrove as his counsel. The court also warned the defendant that he would be expected to question witnesses, know the law that applied to his case, and understand proper courtroom procedure.

The state also described the charges facing the defendant and the maximum punishment for each offense.

At the end of the canvass, the trial court granted the defendant's motion to represent himself. The court concluded, however, that the defendant's speedy trial motion was not ripe because he could not show that the state had failed to prosecute its case with reasonable diligence. The defendant replied that he wanted the trial to begin as soon as possible and did not want to come to court again for any purpose other than jury selection. The court set a new court date of January 8, 2013.

At the January 8, 2013 court date, the court held a hearing on the status of the case. The defendant claimed that he had not received all discovery materials from the state. The prosecutor explained that she had arranged to provide another set of materials to the defendant, but she also represented that the materials had previously been provided to Cosgrove. Cosgrove, who was present at the hearing but not representing the defendant, told the court that he had in turn given the defendant copies of the discovery materials with the contact information of the victim redacted, as required by a protective order. The defendant then explained that he had lost some of the materials when he was previously moved from one jail cell to another.

The parties were back in court on January 17, 2013, in response to a letter the defendant had sent to the prosecutor asking for help in preparing for trial. The defendant explained to the court that he wanted help gathering hospital records because the hospital had told him it would not release any records without a subpoena and suggested that he should contact an attorney to help him with that. The defendant reiterated that he did not want Cosgrove to represent him but asked that Cosgrove help him gather the records from the hospital. The trial court replied that the defendant had elected to represent himself, that it was therefore his responsibility to know the proper procedure for issuing a subpoena, and that Cosgrove would not be appointed to simply track down documents for the defendant. The trial court also expressed a number of concerns about the defendant's decision to represent himself. Among other concerns, the court reminded the defendant that he had no experience in selecting a jury and that the consequences of a conviction could be serious. The court also reiterated to the defendant that presenting a case at a criminal trial was complex, required skill and knowledge of the relevant procedural rules, and that the defendant would be held to the same standard of any attorney presenting a case. The defendant was undeterred by the court's warnings and expressed confidence in his ability to represent himself. Also, during this hearing, the trial court granted a motion by the state to take a biological sample from the defendant for DNA testing.

At a pretrial court appearance a few weeks later, on February 6, 2013, the trial court conducted a second, more thorough canvass concerning the defendant's decision to represent...