State v. Frye

• Decision Date: 22 December 1992
• Docket Number: No. 14494,14494
• Citation: 617 A.2d 1382,224 Conn. 253
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Stanford L. FRYE.

Page 1382

617 A.2d 1382

224 Conn. 253

STATE of Connecticut v. Stanford L. FRYE.

No. 14494.

Supreme Court of Connecticut.

Argued Sept. 25, 1992.

Decided Dec. 22, 1992.

Neal Cone, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Stephen J. Sedensky III, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

BERDON, Associate Justice.

The defendant, Stanford L. Frye, was charged with the crime of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b). ¹ After a jury verdict of guilty, the defendant was sentenced to a prison term of fifteen years. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of the trial court. State v. Frye, 26 Conn.App. 472, 602 A.2d 601 (1992). We granted certification to review the judgment of the Appellate Court on the following issue: "Did the Appellate Court properly conclude that the defendant's request for hybrid representation did not require a proper canvass regarding waiver of his right to counsel?" ² State v. Frye, 221 Conn. 917, 603 A.2d 749 (1992). We conclude that a partial waiver of the right to counsel by a defendant requires the same procedural safeguards demanded when the right to counsel is waived completely. We, therefore, reverse the judgment of the Appellate Court.

Jury selection for the defendant's trial began on January 30, 1990. On February 1, 1990, the defendant's appointed counsel presented to the court a notice he had received from the defendant indicating that the defendant "feels unsatisfied with my level of preparation and knowledge about the case and the investigation that was done, and he indicates that he would like me to be replaced as his attorney. He also indicates he would like the right to personally cross-examine all witnesses himself." When the trial court expressed confusion as to whether the defendant wanted to act as his own counsel, the defendant replied: "My position concerning my trial at this point as it was in the beginning [is] that I would like to represent myself concerning this matter and exercise myself to examine witnesses; cross-examine witnesses. I would, however, like counsel to advise and consult, because I do plan on taking the stand and I would need counsel to question me if I do take the stand." The court then informed the defendant that he had a constitutional right to counsel, but that he also had the right "knowingly and intelligently" to waive his right to counsel. The court indicated that if the defendant wanted court-appointed counsel, his present counsel would continue to act as such counsel. In addition, the court stated that the defendant could represent himself with advice from counsel, but specified that the defendant could not "partially [represent himself] and then expect counsel to continue on." Finally, the court suggested that the defendant confer with counsel to determine whether he wanted to waive his right to counsel.

After a short recess, defense counsel represented that he and the defendant had decided that the defendant would cross-examine the police officers and that they would later determine who would cross-examine other witnesses and who would present final argument. The court cautioned the defendant that he would not be given any leeway during cross-examination, but would be expected to conform to the rules of evidence. The court then ruled that the defendant would be allowed to act as his own counsel, with court-appointed counsel available to advise him throughout the trial.

Both the Connecticut and the United States constitutions guarantee a criminal defendant the right to assistance of counsel. State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I ); State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II ); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). A criminal defendant also has the right to appear pro se in a criminal trial, following an intelligent and voluntary waiver of the right to counsel. Gethers II, supra; see Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). "When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forego those relinquished benefits." Faretta v. California, supra, at 835, 95 S.Ct. at 2541.

"Hybrid representation," sometimes described as "cocounsel" status, occurs when both the defendant and defense counsel conduct portions of the defendant's trial. Gethers II, supra, 197 Conn. at 383, 497 A.2d 408. This court has held that although a defendant does not have a right to hybrid representation under either the Connecticut or the United States constitution; id., at 382-84, 497 A.2d 408; a trial court may exercise its discretion to allow such representation. See id., at 382-94, 497 A.2d 408. Moreover, Practice Book § 964 specifies that a defendant who represents himself may request the assistance of standby counsel, but "[s]uch counsel shall not interfere with the defendant's presentation of the case and may give advice only upon request." As a result, a variety of representational arrangements between a defendant and standby counsel can arise. The principal issue on appeal, then, is where to draw the line within the spectrum of professional representation and self-representation that will trigger the need for a full canvass of the defendant to obtain an effective waiver of the right to counsel.

The defendant maintains that a waiver canvass was required in this case because he could not fully appreciate or anticipate the risks that are inherent in a hybrid representation. The state counters, as the Appellate Court held, that the trial court did not have to undertake a waiver canvass because, according to the state's brief, "[t]he defendant never waived his right to counsel but readily accepted his participation." We are not persuaded. Although the defendant did accept appointed counsel's assistance, the defendant, himself, directed and presented key portions of his defense. For instance, the defendant both cross-examined the police officers who testified for the state and presented final argument to the jury. By conducting these activities himself, the defendant necessarily waived his right to have them performed by counsel.

Appellate courts have used two prevalent modes of analysis the "dominant role" mode and the "core functions" mode, to determine when a trial court must conduct a waiver canvass following a request for hybrid representation. The defendant argues that under either mode of analysis the trial court was required to obtain a valid waiver in this case. Under "dominant role" analysis, a waiver canvass is required when a defendant assumes responsibility for the case. By taking charge, "the defendant has forfeited the right to have an attorney make the critical strategic and tactical decisions pertaining to the defense, and has thus waived the right to counsel. In such a situation, the record must show that a defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case." (Internal quotation marks omitted.) People v. Jones, 53 Cal.3d 1115, 1142, 811 P.2d 757, 282 Cal.Rptr. 465 (1991), cert. denied, --- U.S. ----, 112 S.Ct. 1491, 117 L.Ed.2d 631 (1992). If counsel retains control over the case, a defendant has not waived the right to counsel, and the trial court need not canvass a defendant to obtain a knowing and intelligent waiver of the right to counsel. Id. Under the "core functions" mode of analysis, a valid waiver of the right to counsel must be obtained when a defendant performs core functions that he has a constitutional right to have his attorney perform. United States v. Kimmel, 672 F.2d 720, 721 (9th Cir.1982).

We decline to adopt either the "dominant role" or the "core functions" model for determining when a waiver canvass is required in cases of hybrid representation. Both of these tests are difficult to apply because they focus on the functions actually assumed by a defendant during trial. When conducting the waiver canvass, the trial court may not be able to predict what role a defendant will play in the defense. See Parren v. State, 309 Md. 260, 269, 523 A.2d 597 (1987) (only after trial can the trial court ascertain whether a defendant enjoyed representation by counsel, self-representation or hybrid representation). The trial court, therefore, cannot effectively apply either test to determine whether an intelligent and voluntary waiver of the right to counsel is required until after the fact.

In Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir.1976), the court noted: "We can conceive of no reason why the standard for waiving part of a constitutional right should be different from the standard for waiver of the entire right." We agree and hold that when a defendant requests a partial waiver of the right to counsel, the court must employ the same procedural safeguards that are required to ensure a knowing and intelligent waiver of the entire right to counsel. A waiver canvass is required in such situations because "whatever label is attached to [the representation arrangement], the net result [is that a defendant] had less than the full representation by counsel to which, absent a valid waiver, he was entitled under the [constitution]." Id. Such a bright line rule should eliminate guesswork and confusion on the part of the trial courts and elicit a standard response whenever a defendant indicates that he or she wishes to conduct some...