State v. Drakeford
| Decision Date | 20 January 1987 |
| Citation | 519 A.2d 1194,202 Conn. 75 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Teddy A. DRAKEFORD. |
Barbara Goren, Sp. Public Defender, for appellant (defendant).
Donald A. Browne, State's Atty., with whom, on brief, was Dominick J. Galluzo, Asst. State's Atty., for appellee (state).
Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and FREEDMAN, JJ.
After a trial to a jury, the defendant, Teddy A. Drakeford, was found guilty of murder in violation of General Statutes § 53a-54a and received a sentence of thirty-five years. He appeals from that conviction. This appeal generates three issues: (1) whether the trial court erred in proceeding with jury selection in the absence of the defendant; (2) whether the trial court erred in failing to appoint new counsel; and (3) whether the trial court erred in excluding certain ballistics evidence. We find no error.
The jury could reasonably have found the following facts. The body of the victim was found on Hough Avenue in Bridgeport on October 2, 1983, at approximately 4 a.m. The legs of the clothed body were wrapped in a piece of bloodstained pink foam material. The body lay about three feet behind a dump truck used by the defendant and owned by his employer. The victim had left his apartment during the early evening of October 1, 1983, and was present that same evening at the Hough Avenue apartment of his friend, the defendant. An autopsy examination disclosed a shotgun wound to the back between the shoulder blades and extensive trauma to the face, including fractured upper and lower jaws, lacerations of the lip and fractured teeth. It also revealed that the body contained one hundred fifty-one shotgun pellets, pieces of shotgun wadding in the chest cavity and entrance wound, portions of a foam material containing eleven pellets, and a wooden substance in the mouth. The shotgun wound preceded the mouth injuries and was the cause of death.
The defendant shared a second floor apartment and an attic at Hough Avenue with Cynthia Jelks, Eugene Mack and Mae McArthur, and with his two children. The first floor was occupied by Benigno Torres Santiago, his wife Maria Ortiz, and a daughter, Rosemarie Avila.
Avila observed the victim arrive on his bicycle at the defendant's apartment about 6 p.m. About 11 p.m. she heard a loud noise which seemed to shake the house. About 11:30 p.m. she heard a noise on the second floor stairs. Looking outside, she saw the defendant carrying a roll of pink foam which he deposited into the truck that he used. On a previous occasion she had seen the defendant with the same kind of foam going up to fix the attic. The next morning Avila saw dark stains on the front porch in front of the second floor apartment door and also saw the victim's bicycle at the side of the house.
Ortiz observed the victim place his bicycle on the front porch at about 6 p.m. on October 1, 1983, and go upstairs. She later saw the victim and the defendant leave at approximately 8 p.m. and she did not see them return. Later that evening, however, she heard "a big noise" upstairs.
During the evening of October 1, 1983, Mack was awakened by "something like a big bump" from above. That evening, McArthur was awakened by a loud noise sometime after 11 p.m. Immediately after, she heard other noises that sounded like things being moved around in the attic.
On October 2, 1983, Bridgeport police, after canvassing the neighborhood, executed a search warrant for the second and third floors of the Hough Avenue apartment. In the third floor attic behind a sheetrock wall they found a twenty gauge shotgun with bloodstains and negroid hair. Seized from the rafters was a piece of bloodstained foam material which appeared to "match up" with the piece of foam found on the victim's body. The police also found two rugs on the floor. The bottom rug was blood soaked and contained negroid hairs and tooth particles. The top rug contained bloodstains and particles of negroid hair. In a backyard garbage can they found a bloodstained paper bag with negroid hairs on it and a shirt inside with bloodstains. The steps from the attic to the second floor and from the second floor to the first floor revealed drops of blood, as did the front porch.
The twenty gauge shotgun along with two shotgun shells had been given to the defendant by a David D. Reed, for whom he worked. The pink foam material found on the body was consistent with the foam padding that Reed was installing in houses he was constructing, which the defendant had previously been hired to watch as a security person.
Odontological examination revealed that the tooth particles recovered from the rug in the attic matched the victim's broken upper right bicuspid, and tooth particles recovered from the shotgun stock matched the victim's broken upper left central incisor.
The defendant claims the trial court erred in proceeding with jury selection in his absence and in not delaying the trial. We cannot agree.
On October 10, 1984, after voir dire examination of a prospective juror, the defendant announced he was ready to go back to jail. Informed that the court was proceeding with the trial, the defendant told the court he and his lawyer had a disagreement over juror selection, a fact confirmed by his attorney. 1 Generally complaining about his treatment, 2 he repeatedly interrupted the trial court's attempts to explain his rights and the court procedures, 3 expressed displeasure with his attorney, requested a public defender, and refused to take part in jury selection. The court made it clear on several occasions that the case would continue, a directive with which the defendant took issue as he refused to quiet down and repeatedly interrupted the court. He was informed that he could leave if he wished and return if he agreed to follow the court rules. He was finally removed from the courtroom at his own request. The court then took a forty-two minute recess, after which a sheriff was sent to inform the defendant that the court was prepared to continue the trial and that the defendant was entitled to return if he agreed to conduct himself properly. The sheriff reported that the defendant declined to return to the courtroom. One juror was chosen that day after the defendant absented himself.
The following day, October 11, 1984, the defendant again refused to take part in jury selection, generally continuing his outbursts of the day before. By the end of the day, seven jurors had been selected. On October 12, 1984, the defendant returned to the courtroom for the remainder of the trial.
That the defendant has a constitutional right to be present at all stages of his criminal trial is not disputed. It is also clear that he may waive this right by his conduct, misconduct or his voluntary and deliberate absence from the trial without good cause. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Talton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976); 21 A.L.R.Fed., Continuing Trial--Absent Defendant, 906. The facts of this case do not rise to the level of those in Illinois v. Allen, supra at 343, 90 S.Ct. at 1060, where the eviction of disruptive defendants from the courtroom was approved, although it is clear they approached triggering that response. 4
We have long held that the right to be present at a criminal trial may be lost by consent, waiver or misconduct. See, e.g., Talton v. Warden, supra. Waiver need not be express. It may be implied from the totality of acts or conduct of a defendant. Id.; see also State v. Parham, 174 Conn. 500, 505, 391 A.2d 148 (1978). The evidence clearly indicates that when the defendant announced his a desire to return to his cell at the North Avenue jail, he unequivocally waived his right to attend jury selection, and the court properly allowed him to leave.
The defendant, however, urges us to require our trial courts to adopt, in these circumstances, the balancing test regarding suspension of trial enunciated in United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir.1972), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972). Essentially, that test required the trial court to weigh the likelihood that trial could soon take place with the defendant present, the administrative problems of scheduling, and the burden on the government and its witnesses. Id. We decline that invitation. The Tortora court did not set forth a general rule. It addressed only the exercise of the trial judge's discretion in the extraordinary event that a defendant, after release on bail, fails to appear for trial. In this case, the defendant was not only in custody, but present in court when he voluntarily opted to leave the proceedings. Moreover, recognizing that deliberate absence without sound reason "indicates nothing less than an intention to obstruct the orderly processes of justice," the Court of Appeals held that "[n]o defendant has a unilateral right to set the time or circumstances under which he will be tried." Id., 1208.
Significantly, the defendant had counsel of his own choosing available to him for legal advice. State v. Carpenter, 541 S.W.2d 340, 343 (Mo.App.1976). Beyond this, the trial judge attempted to explain the situation to him during a prolonged colloquy in which the defendant repeatedly interrupted and impeded the judge's efforts to advise him. Nevertheless, the court made clear that the trial was continuing, that the defendant was welcome to stay if he obeyed the court rules, and that he had the right to leave if he so desired. He chose to leave. More, the court took a lengthy recess, at the end of which it sent a sheriff to inquire of the defendant whether he was willing to return to the courtroom. He refused. It is difficult to fault the actions of the trial court.
Permitting a defendant unilaterally to prevent his case...
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