State v. Flanagan

• Decision Date: 24 December 2013
• Docket Number: No. 33062.,33062.
• Citation: 147 Conn.App. 262,82 A.3d 1191
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Maurice FLANAGAN.

147 Conn.App. 262

82 A.3d 1191

STATE of Connecticut

v.Maurice FLANAGAN.

No. 33062.

Appellate Court of Connecticut.

Argued Oct. 11, 2013.

Decided Dec. 24, 2013.

Neal Cone, senior assistant public defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Kevin J. Murphy, supervisory assistant state's attorney, for the appellee (state).

LAVINE, KELLER and SULLIVAN, Js.

KELLER, J.

In accordance with a remand order from our Supreme Court, the trial court determined that the defendant, Maurice Flanagan, was not entitled to a canvass under Practice Book § 44–3 following the assertion of his right to self-representation at his criminal trial. The defendant appeals from the court's judgment, arguing that the court improperly concluded that his interest in self-representation was outweighed by the potential disruption of the trial already in progress that would have occurred had he been permitted to represent himself. We affirm the judgment of the trial court.

Following the defendant's conviction, after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a–59 (a)(1) and 53a–48 (a), the defendant was sentenced to a term of incarceration of twenty years, suspended after thirteen years, followed by five years of probation. He appealed to this court, which affirmed the judgment of conviction. State v. Flanagan, 93 Conn.App. 458, 890 A.2d 123 (2006). ¹ This court's opinion in that appeal sets forth the factual basis on which the state premised criminal liability. Id., at 460–63, 890 A.2d 123. Thereafter, this court granted the defendant's motion for reconsideration and reargument en banc, in which he challenged this court's rejection of one of the several claims that he raised on direct appeal, namely, that the trial court, Shortall, J., had violated his right to self-representation as guaranteed by the United States constitution. State v. Flanagan, 102 Conn.App. 105, 106–107, 925 A.2d 385 (2007). The defendant argued that the trial court failed to canvass him pursuant to Practice Book § 44–3 after he had clearly and unequivocally asserted his right to self-representation and, thus, failed to give proper effect to his assertion. Id., at 112, 925 A.2d 385. This court, sitting en banc, rejected the defendant's argument that he asserted his right to self-representation at trial and affirmed the judgment of conviction.²Id., at 132, 925 A.2d 385.

Subsequently, our Supreme Court granted the defendant's petition for certification to appeal. State v. Flanagan, 284 Conn. 922, 933 A.2d 725 (2007). Our Supreme Court reversed this court's judgment after concluding that the defendant had, in fact, clearly and unequivocally asserted his right to self-representation at trial. State v. Flanagan, 293 Conn. 406, 421–27, 978 A.2d 64 (2009).³ In determininga proper resolution of the appeal, the Supreme Court then addressed an alternate ground for affirming this court's judgment upholding the conviction, specifically, that the trial court properly denied the defendant's midtrial request for self-representation by using an “ ‘exceptional circumstances' ” test to balance his desire to proceed in a self-represented capacity against the resulting prejudice to the state.⁴Id., at 427–34, 978 A.2d 64.

Our Supreme Court held that the trial court improperly applied an “ ‘exceptional circumstances' ” test in denying the defendant's request to proceed in a self-represented capacity. Id., at 428–30, 978 A.2d 64. The court observed that a defendant's right to self-representation is “ unqualified if invoked prior to the start of the trial”; (emphasis in original; internal quotation marks omitted) id., at 430, 978 A.2d 64; but that a specific balancing test should be applied to requests for self-representation made after a trial has begun. See id., at 431, 978 A.2d 64. The court stated:

“Indeed, the United States Supreme Court recognized in Faretta v. California, [422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ], that there are three grounds for denying a defendant his right to self-representation: (1) he makes the request in untimely fashion such that granting it would disrupt the proceedings; [id., at 807, 95 S.Ct. 2525]; (2) the defendant engages in serious obstructionist misconduct; id. [at], 834 n. 46 ; and (3) the defendant has not knowingly and intelligently waived his right to counsel. Id. [at], 835 ; see 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 11.5(d), pp. 47–49.... State v. Townsend, 211 Conn. 215, 221 n. 4, 558 A.2d 669 (1989). With respect to the timeliness ground ... [the United States Court of Appeals for] the Second Circuit has stated previously that [a] criminal defendant must make a timely and unequivocal request to proceed pro se in order to ensure the orderly administration of justice and prevent the disruption of both the pre-trial proceedings and a criminal trial.... Assuming, however, that a defendant's request to proceed pro se is informed, voluntary and unequivocal, [t]he right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial.... Distinct considerations bear upon requests made after a trial has begun.... Williams v. Bartlett, [44 F.3d 95, 99 (2d Cir.1994) ]. After the commencement of a trial, the right of self-representation is sharply curtailed ... Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976); and a trial court faced with such an application must balance the legitimate interests of the defendant in self-representation against the potential disruption of the proceedings already in progress.... In exercising this discretion, the appropriate criteria for a trial judge to consider are [1] the defendant's reasons for the self-representation request, [2] the quality of counsel representing the [defendant], and [3] the [defendant's] prior proclivity to substitute counsel.... Williams v. Bartlett, supra, at 99–100 n. 1.

“We conclude that this balancing test employed by the Second Circuit represents an appropriate inquiry in evaluating the first ground for denying a defendant his right to self-representation suggested by the United States Supreme Court in Faretta v. California, supra, 422 U.S. at 807, 95 S.Ct. 2525, namely, whether the defendant made his request in untimely fashion such that granting it would disrupt the proceedings.... State v. Townsend, supra, 211 Conn. at 221 n. 4, 558 A.2d 669. Accordingly, we conclude that, when a defendant clearly and unequivocally has invoked his right to self-representation after the trial has begun, the trial court must consider: (1) the defendant's reasons for the self-representation request; (2) the quality of the defendant's counsel; and (3) the defendant's prior proclivity to substitute counsel. If, after a thorough consideration of these factors, the trial court determines, in its discretion, that the balance weighs in favor of the defendant's interest in self-representation, the court must then proceed to canvass the defendant in accordance with Practice Book § 44–3 to ensure that the defendant's choice to proceed pro se has been made in a knowing and intelligent fashion. If, on the other hand, the court determines, on the basis of those criteria, that the potential disruption of the proceedings already in progress outweighs the defendant's interest in self-representation, then the court should deny the defendant's request and need not engage in a § 44–3 canvass.” (Emphasis in original; footnote omitted; internal quotation marks omitted.) State v. Flanagan, supra, 293 Conn. at 431–33, 978 A.2d 64.

The Supreme Court reversed the judgment of this court. Its remand order stated: “[T]he case is remanded to [the Appellate Court] with direction to remand the case to the trial court for further proceedings to determine if that court was required to canvass the defendant in accordance with Practice Book § 44–3; in the event that the court determines that it was required to canvass the defendant pursuant to § 44–3, a new trial is ordered.” Id., at 434, 978 A.2d 64.

On remand, the trial court, D'Addabbo, J., held a hearing related to the issue framed by the Supreme Court's order.⁵ The court issued a lengthy and thorough decision in which it concluded that “the defendant's request for self-representation should be denied and ... a Practice Book § 44–3 canvass need not be conducted.”

In its memorandum of decision, the trial court set forth the governing legal principles as set forth in the Supreme Court's decision. It was undisputed that the defendant asserted his right to self-representation after the trial had begun. Accordingly, the court addressed separately the reasons for the defendant's self-representation request, the quality of the defendant's trial counsel and the defendant's proclivity to substitute counsel. In relevant part, the court's decision states:

“The defendant has presented that the reason for requesting self-representation was to call witnesses in the defendant's case-in-chief. This reason was presented to Judge Shortall during the trial. Particularly, the defendant wanted to call three witnesses: Shannon Lamar, Fernando Rivera and ‘Teely.’ ... “The defendant was charged in the first trial with capital felony ... two counts of murder ... two counts of criminal attempt to commit murder ... one count of conspiracy to commit murder ... and one count of conspiracy to commit assault in the first degree.... The defendant was first presented for trial on January 5, 1999. He was represented by a special public defender, Herman Woodard. The defendant was convicted by a jury of all counts, except capital felony. The case was reversed on appeal on an unrelated issue ... and transferred to the New Britain Judicial District on May 15, 2002. John Stawicki was appointed to represent the defendant.

“At the second trial, the defendant...