State v. Francis

• Decision Date: 07 July 2015
• Docket Number: SC19305
• Citation: State v. Francis, SC19305 (Conn. Jul 07, 2015)
• Court: Connecticut Supreme Court
• Parties: STATE v. FRANCIS

STATE v. FRANCIS

SC19305

Supreme Court of Connecticut

July 7, 2015

DISSENT

ESPINOSA, J., with whom ZARELLA and ROBINSON, Js., join, dissenting.The majority concludes that a criminal defendant who insists on taking the stand to testify in his own defense, but who refuses to cooperate or even to speak with his assigned counsel so that they can prepare him for examination, is deprived of his sixth amendment right to counsel if the trial court concludes that the only way to accommodate his conflicting demands is to require that he testify in narrative form, with his public defenders temporarily assisting as "standby counsel."I disagree that this reasonable solution to a conundrum entirely of the defendant's own making amounts to a constitutional violation.Accordingly, I respectfully dissent, and would affirm the judgment of the Appellate Court.

I

THE DEFENDANT WAS NOT DENIED THE

RIGHT TO COUNSEL

I first conclude that the defendant, Maurice Francis, was not denied the right to counsel when making his brief narrative statement.The following facts are relevant to the disposition of this claim.It is undisputed that defense counsel, Bruce Lorenzen and William O'Connor, actively and adequately represented the defendant throughout the pretrial process and during the state's presentation of its case.After the state rested, counsel continued to put on a vigorous defense.Prior to calling the defendant, counsel called and questioned four witnesses: Noel Hernandez, a neighbor of the defendant at the time of the murder of the victim, Tashima Reddick; Brenton Alexander, a former neighbor and friend of the defendant who had dated the defendant's mother; and Sachin Parekh and Douglas McAdoo, two physicians in the emergency department of an area hospital who treated the victim in the months prior to her murder.When the defendant then opted to proceed with his plan to testify, defense counsel questioned him at some length, asking him twenty-seven questions prior to inviting his narrative statement.Although the Appellate Court characterized these questions as merely "preliminary";State v. Francis, 148 Conn. App. 788, 811, 86 A.3d 1074(2014); in fact, most of the direct examination was comprised of substantive questions calculated to afford the defendant an opportunity to develop the two theories of the case that he attempted to articulate throughout the trial: (1) that he was incarcerated at the time of the murder and, therefore, he could not have committed it; and (2) that the case was one of mistaken identity, in which the proper defendant was an alleged half brother of the defendant with the nearly identical name of Mourice Francis.For example, defense counsel questioned the defendant as to: whether he was thespeaker on a 911 tape reporting the victim's death (he claimed not to be); whether he had been incarcerated at the time of the murder (he claimed to have been); whether he knew the victim or had any knowledge of the events surrounding her death (he denied any knowledge thereof); and the nature of his relationship to other members of the Francis family (he claimed that his mother's name was Pam and that Viola Francis, the woman who claimed to be his mother, was, in fact, the mother of the purported half brother, Mourice).Defense counsel also attempted to question the defendant regarding medications that he had been prescribed while incarcerated, presumably in an effort to raise doubts as to his mental competence, but the court sustained the state's objection to that line of inquiry.Accordingly, although the dozens of questions that counsel asked the defendant on direct examination may have been preliminary in the limited sense that they preceded his narrative testimony, they sought to develop a substantive defense and to elicit the defendant's theory of the case, and did not merely set the table for the brief narrative statement that followed.

After the defendant gave his narrative statement, defense counsel was available on what the court characterized as a "standby" basis to object to the state's brief cross-examination.No objection was warranted, however, as the prosecutor did not attempt to exceed the scope of direct examination, and merely questioned the defendant about his knowledge of the victim, his relationship to Viola Francis, and his involvement in the events surrounding the victim's murder.There was no redirect examination.

Following the defendant's testimony, defense counsel resumed their traditional role.They called Viola Francis as a sixth defense witness and, once again, attempted to verify the defendant's story that he had been mistaken for a half brother named Mourice.The defense team subsequently cross-examined the state's rebuttal witnesses, sought favorable jury instructions, renewed their request that the court order a competency evaluation of the defendant, and presented a vigorous and substantial closing argument.

It is clear, then, that the only portion of the trial during which defense counsel was not engaged in fully and actively representing the defendant was the brief period when he presented his narrative statement, a statement that is largely incoherent and spans only eighteen lines of transcript.Defense counsel invited this narrative statement, following his direct examination of the defendant, by asking him: "Is there anything else you'd like to tell the ladies and gentlemen of the jury about this case?"The defendant responded: "Well, I have some notes that I've been documenting about what I've been acknowledging, that's about that.Is it fair that I state that?"After the court offered him the choicewhether to proceed, the defendant stated, "I'll proceed," and then, following a brief interruption by the court, made the following statement: "Due to today's session, I have acknowledged that my whereabouts would contradict any charges that would be brought against me, and I acknowledge today also that the state of Connecticut and . . . Lorenzen and . . . O'Connor is attempting to slave, gamble, and incompetent to commit by probate without a cause to embezzle due to the fact that this matter does not have a cause of death.

"And I also have some other notes, that I'm not booked or arraigned and my identity has been gambled by Major Crimes Division also at the same time—and also by an attorney by the name of Cynthia I. Crockett gambled my name by settling a claim in my little brother's name, Maurice Francis, and that's fiber optic.On November 16, 80 Washington Street, which can also be subpoenaed too and sent in for permanencies.I am legally disabled."¹When asked if he wished to add anything further, the defendant responded, "No, ma'am."

Although neither this court nor the United States Supreme Court has spoken directly to the issue, a number of our sistercourts have concluded that the sixth amendment right to counsel is not infringed when a criminal defendant makes this sort of brief narrative statement to the jury, unmediated by counsel, but otherwise enjoys the benefit of full legal representation throughout the trial process.See, e.g., Feole v. Wall, Docket No. C.A. 02-518S, 2004 WL 350036, *8-9(D.R.I.February 23, 2004)(when defense counsel provided able representation throughout entire trial but was unprepared and unwilling to examine defendant, reviewing court found no violation of right to counsel in trial court's granting of defendant's eleventh hour request to testify, conditioned on his testifying unassisted, in narrative form);People v. Nakahara, 30 Cal. 4th 705, 717-18, 68 P.3d 1190, 134 Cal. Rptr. 2d 223(2003)(trial court was not required to obtain defendant's express waiver of right to counsel when defendant had assistance of counsel at all stages of trial except during narrative statement, in which counsel was unable to assist);cf.People v. Guzman, 45 Cal. 3d 915, 946, 755 P.2d 917, 248 Cal. Rptr. 467(1988)(where defendant was " 'forced' " to represent himself only with respect to his own direct testimony and counsel was available for and participated in all other stages of trial, it was not necessary that trial court's warnings about dangers of self-representation be as complete), cert. denied, 488 U.S. 1050, 109 S. Ct. 882, 102 L. Ed. 2d 1005(1989), overruled in part on other grounds byPrice v. Superior Court, 25 Cal. 4th 1046, 25 P.3d 618, 108 Cal. Rptr. 2d 409(2001).²

The rationale underlying those decisions is compelling.Narrative testimony is, by definition, a form of testimony in which "defendants testify without ques-tioning by counsel . . . ."L. Perrin, "The Perplexing Problem of Client Perjury,"76 FordhamL. Rev. 1707, 1737(2007).To the extent that narrative testimony is appropriate in a given situation, then, the fact that defense counsel merely asks an open-ended question inviting the narrative response, and then permits the defendant to answer, does not deprive the defendant of legal representation, any more than a defendant is unrepresented during other stages of the trial during which counsel plays a more passive role.There is, quite simply, nothing else for defense counsel to do during that portion of the trial.

In the present case, although the majority apparently believes that the use of the narrative format was inappropriate, it never tells us exactly what the alternative might have been.This was a case in which the defendant refused to meet or even to speak with his defense team.He specifically refused counsel's offer to help him prepare to testify.In addition, the defendant's beliefs and theories went well beyond the implausible and the farfetched.His statements, both to the court and to the jury, were frequently incoherent.He repeatedly claimed, for example, that his identity and his alibi could be established via "fiber optic" or "fiber optic audio," and his narrative testimony was a rambling diatribe in which he accused various attorneys of attempting to "gamble" and "slave" him, and of "commit[ting] by probate...