State v. Gethers

Citation197 Conn. 369,497 A.2d 408
CourtSupreme Court of Connecticut
Decision Date03 September 1985
PartiesSTATE of Connecticut v. David GETHERS.

Beth A. Merkin and Holly J. Bray, Certified Legal Interns, with whom were Michael R. Sheldon and, on brief, Todd D. Fernow, Hartford, for appellant (defendant).

Steven M. Sellers, Deputy Asst. State's Atty., with whom, on brief, were Michael Sullivan and Carl J. Schuman, Asst. State's Attys., for appellee (state).

Before HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal involves various aspects of a criminal defendant's right to self-representation at trial, including whether he has a right to hybrid representation. On August 22, 1980, the defendant was charged by an information with tampering with a witness in violation of General Statutes § 53a-151. After entering a plea of not guilty to the charge, he was tried by a jury and found guilty.

On appeal, he raises claims that the trial court erred in that it (1) caused him to conduct a portion of his trial alone without first obtaining a valid waiver of his state and federal constitutional right to the assistance of counsel; (2) violated his state constitutional right to hybrid representation when his request to proceed as co-counsel was denied; (3) expressly restricted the role of his standby counsel in violation of Practice Book § 964; and (4) violated Practice Book § 632 in originally granting his defense counsel's motion to withdraw. We find no error.

Some elaboration of the pertinent pretrial proceedings is necessary for disposition of the defendant's appeal. Subsequent to being charged with the present offense, the defendant applied for and was found eligible to receive the services of a public defender. Attorney Judith Hoberman was appointed to represent him. Upon his plea of not guilty and election of trial by jury, the defendant's case was assigned for trial on December 11, 1980.

Prior to the voir dire of the prospective jurors, the trial court was informed by Hoberman that the defendant had "expressed" to her "an interest to conduct a portion of his own defense." Hoberman informed the trial court that she could not appear as co-counsel with the defendant, that she had suggested to him that he file a pro se appearance, and that she would move to withdraw her appearance for the defendant. Hoberman further informed the court that she would be willing to appear as the defendant's standby counsel in the event he elected to proceed pro se. 1

The trial court then cautioned the defendant of the dangers of self-representation. Specifically, the trial court advised the defendant of the gravity of the offense with which he was charged, that if convicted he faced a possible sentence of up to five years of imprisonment, and that "a trial, particularly a trial to the jury, is going to require a very real degree of expertise to be properly conducted." In explaining the latter point, the court cited the expertise needed to argue intelligently about the admissibility of evidence. 2 The court then in no uncertain terms warned the defendant of the dangers of self-representation: "You're putting yourself in a terrible position in attempting to represent yourself. You are not really cognizant of how a trial is conducted, what the appropriate law is, what the appropriate rules of evidence are and that sort of thing. You realize to be a lawyer requires three years of graduate school just to start. Now you can't possible [sic] have that background expertise."

The defendant's response to the court's statements was: "What you said is quite true--As a matter of fact absolutely true, but what you don't understand is that my counsel--I discussed with my counsel the case and she is just not going to submit things that I want submitted, that I feel need to be submitted, to the jury to understand what's fully going on here." Upon the court's suggestion that, because of his counsel's "expertise," a decision not to develop "certain things" may have been necessary "under the rules of evidence," the defendant declared: "Oh, yes they can be brought out and they will be brought out if I have anything to say about this. I am the one being accused. They drag me in here, accuse me and there's no way I can see myself sitting here not saying anything in my defense."

Hoberman then renewed her motion to withdraw. The trial court expressly asked the defendant whether he realized that he was "entitled to be represented," to which the defendant answered, "[r]ight." The trial court asked the defendant whether he "realize[d] that this can run into a lot of technicalities, in the course of a trial, of which you are unaware." The defendant responded that he did not "want to conduct a full trial," but rather "[a]ll I want is a small portion--a little say. [Attorney Hoberman] will be conducting the trial." The court then said: "Well, I can't force a lawyer on you," and the defendant stated: "So, please don't let her go." The court further inquired of the defendant whether "[k]nowing your rights and knowing the difficulties with which you are facing, nevertheless, you want to conduct your own defense?" The defendant responded, "I don't want to conduct the whole trial, I just want to be able to have, you know, a say, a few things here and there. She would counsel me, of course, before I say it." 3

The trial court then proposed that if the defendant filed "a pro se appearance" the court would grant Hoberman's motion to withdraw but would also order her "to remain in attendance as standby counsel." 4 The court then instructed the clerk to ensure that the defendant was provided a pro se appearance form. Hoberman requested that the defendant be given "just a few moments to consider your Honor's latest proposal," but the defendant retored: "I understand it perfectly well." The court warned the defendant that further delay of the trial would not be permitted and directly asked the defendant: "Are you entering a pro se appearance or are you not?" The defendant responded affirmatively: "That's correct." The defendant filed his pro se appearance with the trial court which then granted Hoberman's motion to withdraw her appearance as the defendant's counsel. The court, however, appointed Hoberman as standby counsel for the defendant and directed her "to remain in attendance."

The defendant thereafter presented his opening statement to the jury panel, in which he represented that he was a student "at Yale College with the Special Division Program," and he personally conducted the voir dire during jury selection. Just prior to the presentation of evidence, the defendant orally moved to dismiss the charges against him on the ground that there was "no probable cause in the first place to arrest me." During the hearing on this motion, the defendant, as he asserts in his brief, "requested that his counsel be re-appointed and withdrew his appearance." 5 Noting that the defendant had already "made a knowing waiver of the right to be represented by counsel," the court granted the defendant's request, and the pro se appearance was withdrawn. Later during the actual trial, the defendant changed his position and requested and was granted the court's permission to conduct his representation on a pro se basis. 6 Hoberman's appearance was again withdrawn, and the court appointed her as the defendant's standby counsel. The defendant then conducted the balance of his trial, including the presentation of final argument to the jury.

I

We address first the defendant's claim that the trial court "caused him to conduct a portion of his trial alone without first obtaining a valid waiver" of his state and federal constitutional rights to assistance of counsel. Specifically, the defendant argues that, because the "waiver" of his right to counsel should be held invalid on the ground that the record does not clearly demonstrate that he made "an unequivocal request to represent himself," he is entitled to an automatic reversal of his conviction in that he had represented himself during a portion of the proceedings when the right to counsel had attached.

The state does not dispute that the defendant had a state and federal constitutional right to assistance of counsel during both the voir dire of the prospective jurors and the pretrial hearing on the defendant's pro se motion to dismiss. In State v. Gethers, 193 Conn. 526, 480 A.2d 435 (1984), it is implicit that the court viewed the right to counsel as having attached during the stage of the proceeding involved in the voir dire of prospective jurors. Id., 532-33, 480 A.2d 435. This court also regards the voir dire under Connecticut law as "an integral part" of the criminal trial and a "critical stage" of the proceeding. Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970); State v. Ibraimov, 187 Conn. 348, 357, 446 A.2d 382 (1982); State v. Canady, 187 Conn. 281, 289, 445 A.2d 895 (1982); 3 Wharton, Criminal Procedure (12th Ed. Torcia 1975) § 411. We turn next to the primary component of the defendant's claim, i.e., the record does not clearly demonstrate that he made an unequivocal request to represent himself.

A criminal defendant is guaranteed the right to assistance of counsel under both the federal; see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and the state constitutions. See State v. Gethers, supra, 193 Conn. at 533, 480 A.2d 435. A criminal defendant also has the right to appear pro se in a state criminal trial "when he voluntarily and intelligently elects to do so." Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); see also State v. Gethers, supra, citing Lyles v. Estelle, 658 F.2d 1015, 1020 (5th Cir.1981). See generally annot., 98 A.L.R.3d 13 (1980). The court in Faretta stated the rule as follows: "When an accused manages his own defense, he relinquishes, as a...

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