State v. Day

Decision Date27 June 1995
Docket NumberNo. 14418,14418
Citation661 A.2d 539,233 Conn. 813
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Jason DAY.

Richard Emanuel, Asst. Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Jonathan Benedict, Asst. State's Atty., for appellee (state).


PETERS, Chief Justice.

The principal issue in this capital felony appeal is the extent to which the defendant's imperfect self-representation is a ground for affording him a new trial. The defendant, Jason Day, was charged with one count of capital felony in violation of General Statutes § 53a-54b(8), four counts of murder in violation of General Statutes § 53a-54a(a), and one count of assault in the third degree in violation of General Statutes § 53a-61(a)(1). 1 The defendant represented himself during a portion of his jury trial, and he thereafter was found guilty on all counts. At a subsequent penalty hearing pursuant to General Statutes § 53a-46a, the trial court concluded that the state had failed to adduce sufficient evidence from which the jury reasonably could have found that the state had established the existence of an aggravating factor beyond a reasonable doubt. The trial court therefore concluded that the defendant could not be subjected to the death penalty and instead imposed a total effective sentence of life imprisonment without the possibility of parole. See General Statutes § 53a-46a(f). 2 The defendant appealed his convictions directly to this court pursuant to General Statutes § 51-199(b)(3). 3 We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In early 1990, the defendant resided in a one bedroom apartment in Bridgeport with his girlfriend, Lisa G.; Lisa's brother, Raymond G.; Raymond's girlfriend, Theresa H.; Gloria S.; and Theresa's sons, five year old George G. and two year old Marcus G. Sometime before 10 p.m. on March 19, 1990, the defendant shot and killed Raymond G., Lisa G. and George G. in the apartment. The defendant also shot and killed Theresa H. while she was in her car in the parking area of the apartment house and dragged her body to an adjacent storage shed. Either before or after shooting Theresa H., the defendant repeatedly struck her in the head with the blade of a snow shovel. Each victim was shot in the head from close range. Marcus G., who was present in the apartment when the shootings took place, had been slapped in the face by the defendant but had not been shot.

The defendant thereafter drove Theresa H.'s car to a hospital in New York City, where he requested treatment under an assumed name and was diagnosed as having a fractured toe. Although he was scheduled for surgery, the defendant left the hospital before the operation was due to be performed. He subsequently was apprehended in a hospital in Baltimore by agents of the Federal Bureau of Investigation (FBI) on charges of unlawful flight to avoid prosecution. While in custody, the defendant confessed his role in the killings to FBI agents. Further facts will be related as necessary to address specific claims.

On June 12, 1990, the day after the defendant was charged in a multicount information, he was afforded legal representation by the appointment of William Holden, the public defender for the judicial district of Fairfield. One month later, at the defendant's probable cause hearing, Patrick J. Culligan of the trial services unit in the office of the chief public defender also entered an appearance on the defendant's behalf. On March 4, 1991, against the advice of both attorneys, who still purported to represent him at the time, the defendant filed a pro se motion for a speedy trial. The trial court, Ronan, J., ruled that the motion was effective upon receipt and set the case to begin trial no later than thirty days after the filing date.

Three weeks later, on March 26, 1991, the defendant moved in open court to waive his right to counsel and to represent himself. After canvassing the defendant, the trial court, McKeever, J., 4 granted the defendant's motion and simultaneously appointed Culligan as standby counsel. Throughout the entire voir dire, which commenced the following day and continued sporadically through the middle of May, 1991, the defendant represented himself, though standby counsel was present.

The state began presenting its evidence to the jury on May 20, 1991. During the first day of the trial, four witnesses testified. Before the trial resumed on the following day, May 21, the defendant requested that his standby counsel be reappointed to represent him. The trial court immediately granted his request, appointed Culligan and Holden and adjourned for the day.

On May 22, Culligan and Holden moved for a mistrial. When their motion was denied, they requested a thirty day continuance. The trial court acceded to the request for a continuance, but only for thirteen days, until June 4, 1991. On that day, after counsels' renewed request for a longer continuance was denied, the presentation of evidence to the jury resumed. The jury returned a verdict of guilty on all counts on July 22, 1991. Because the state failed to establish the existence of an aggravating factor at the penalty hearing, the defendant was not sentenced to death.

On appeal, the defendant argues several grounds for reversal of the judgment against him. To some degree, each claim except the last relates to his decision to represent himself during the initial portion of the trial. The defendant asserts that the trial court improperly: (1) accepted his waiver of the right to counsel and permitted him to represent himself; (2) granted his pro se motion for a speedy trial while he still was represented by counsel; (3) denied his request for a mistrial upon reappointment of counsel; (4) denied various defense motions during voir dire; (5) upon reappointment of counsel, granted a continuance only for two weeks rather than for the one month requested; and (6) failed to instruct the jury on the "two witness" rule, which failure resulted in his conviction upon insufficient evidence. We disagree with each of these contentions and conclude that the judgment of conviction must be affirmed.


We first consider the defendant's claim that the trial court improperly granted his motion to waive his right to counsel and to proceed pro se. The defendant presents two separate claims: (1) that the trial court incorrectly ruled that he was competent to make the decision to waive counsel; and (2) that even if he was competent, his waiver decision was not made knowingly, voluntarily and intelligently. Our analysis of these claims requires examination of the contours of the right to self-representation and of the relevant standards by which to measure a defendant's decision to exercise that right.


Both the federal constitution and our state constitution afford a criminal defendant the right to forego the assistance of counsel and to choose instead to represent himself or herself at trial. As a matter of federal constitutional law, the right to self-representation is premised on "the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged." 5 Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975); see also McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S.Ct. 944, 948-49, 79 L.Ed.2d 122 (1984); cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (incorporating sixth amendment against states). The Connecticut constitution is more explicit, stating directly that "[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel...." (Emphasis added.) Conn. Const., art. I, § 8. We repeatedly have interpreted this language to establish an independent state constitutional guarantee of the right to self-representation. See State v. Townsend, 211 Conn. 215, 218, 558 A.2d 669 (1989); State v. Williams, 203 Conn. 159, 167, 523 A.2d 1284 (1987); State v. Carter, 200 Conn. 607, 611, 513 A.2d 47 (1986); State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II ); State v. Gethers, 193 Conn. 526, 532-33, 480 A.2d 435 (1984) (Gethers I ).

Neither the federal nor the state constitution, however, requires that a defendant be permitted simultaneously to exercise the right to self-representation and the right to counsel. McKaskle v. Wiggins, supra, 465 U.S. at 183, 104 S.Ct. at 953-54; Gethers II, supra, 197 Conn. at 382, 497 A.2d 408. Indeed, those rights present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. " 'When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins.' Gethers I, supra, [193 Conn. at] 534 . Put another way, a defendant properly exercises his right to self-representation by 'knowingly and intelligently' waiving his right to representation by counsel." State v. Townsend, supra, 211 Conn. at 220, 558 A.2d 669.

"The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense." McKaskle v. Wiggins, supra, 465 U.S. at 176-77, 104 S.Ct. at 950; see also Faretta v. California, supra, 422 U.S. at 833-34, 95 S.Ct. at 2540-41 (allowing defendant to elect self-representation consistent with framers' belief in "the inestimable worth of free choice"); State v. Carter, supra, 200 Conn. at 613, 513 A.2d 47 (right "affords protection to the defendant's interest in personal autonomy"). It is also consistent with the ideal of due process as an...

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