State v. Gethers

• Decision Date: 03 July 1984
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. David GETHERS.

Page 435

480 A.2d 435

193 Conn. 526

STATE of Connecticut v. David GETHERS.

Supreme Court of Connecticut.

Argued Jan. 12, 1984.

Decided July 3, 1984.

David Gethers, pro se, appellant (defendant), with whom was Mark Rademacher, Hartford.

Roland D. Fasano, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Kenneth Leyba, legal intern, for appellee (state).

Before SPEZIALE, C.J., and HEALEY, PARSKEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

The defendant ¹ was convicted after a trial to a jury of two counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4). On this appeal, he claims that the trial court erred: (1) in permitting him to represent himself at the trial; (2) in denying him the right to effective assistance of counsel; and (3) in denying him due process of law by allowing a defense witness to be tampered with and influenced before that witness testified at the trial. ² We find no error.

The circumstances relating to the defendant's various claims of a denial of his constitutional right to counsel require some elaboration.

The crimes of which the defendant was found guilty arose out of an armed robbery of a New Haven bank on October 1, 1980. The office of the public defender was appointed to represent him on October 10, 1980. Thereafter, because of a conflict of interest, the office of the public defender was permitted to withdraw and a special public defender was appointed. That special public defender was later permitted to withdraw after claiming, inter alia, a "total breakdown in the attorney/client relationship" on January 13, 1981. The court, on that date, appointed Howard Gemeiner as his special public defender.

On Friday, June 5, 1981, the defendant pleaded not guilty to a substituted information charging two counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4) and elected to be tried by a jury. Immediately after this plea and election, the state's attorney as well as counsel for the defendant said that they were ready to have the jury panel brought in "for introductions." ³ On the following Monday, June 8, 1981, the defendant appeared before the court with attorney Gemeiner at which time he raised a number of matters. These included claims that he could not be tried on two counts of robbery stemming from one incident based on the affidavit attached to the arrest warrant which he had in hand; that the first time he knew his trial was to start on June 5, 1981, was when he was brought to court; that he had not received certain "motions" from Gemeiner which had in fact been filed; ⁴ that he wanted a continuance until June 12, 1981, to obtain a new attorney which he said his family had in mind; that he wanted a new jury panel with more "Afro people" than the panel presented to him contained. He also stated that he wanted to discharge Gemeiner not only for failing to give him copies of the motions which had been filed and neglecting to tell him that the trial would be starting on June 5, 1981, but also because "there is a total breakdown in the relationship between me and my current attorney." ⁵

The court then answered several questions asked by the defendant. The court refused to answer the defendant's question about how he could be tried on two counts of robbery based on his interpretation of the affidavit attached to the arrest warrant, pointing out that the purpose of the trial was to allow the state to present its witnesses and that, if it did not sustain its burden of proof, then he could not be found guilty of the charge. It was also explained that the state had the burden at trial of proving each element of the crime charged and, if it did not, he was entitled to be found not guilty. The defendant indicated that he understood that the court was saying "it is up to the jury to say whether he [was] guilty of doing this and not doing that, or whatever." The court then told him that it was for the jury to determine questions of fact and to "decide whether there is any merits to the claims being presented in the information."

After the defendant requested a continuance to Friday, June 12, 1981, "for [the court] to evaluate my allegations," the court asked him: "[Do] you have a lawyer ready to come in and step in?" No direct answer was given by the defendant. ⁶ The court, after pointing out that Gemeiner was the second lawyer who had been appointed to represent the defendant, stated that they would proceed with jury selection. The court noted that although it was Monday, it was "quite likely" that jury selection might take "until perhaps Wednesday or probably Thursday morning." Immediately thereafter, the court said that "[i]f your family in the meantime wants to retain another lawyer to step in, you can do that between now and when the evidence starts as of Thursday morning." The defendant's motion to discharge Gemeiner and his motion to put "some more Afro people on the jury panel" were denied, the court stating that it had no control over the race, religion or creed of the jury panel.

Prior to the luncheon recess, Gemeiner indicated that he was having a serious communication problem with the defendant and that he had spoken to him a number of times, but that if the defendant acted pro se, he would assist him in picking the jury, as the defendant wished, to make sure that "the legalities and the ground rules [are] followed." ⁷ The state's attorney said: "May I put on the record [that] Mr. Gemeiner has a very fine reputation as a criminal lawyer and has [had that] for a number of years now. He certainly represents the quality attorney in this area." After some discussion about the defendant's competency, counsel for the state said that he knew that the defendant "had proceeded in GA 6 [New Haven] on another case earlier in the year ⁸ and apparently without a fifty-four-forty taking place prior to that case"; ⁹ that he did not see any basis for a competency examination; that the defendant was "articulate ... able to write out what he thinks the motions are" and that "[h]e is able to at least understand the proceeding from his own point of view...." The state's attorney went on to say: "Whether or not he is able to communicate that to counsel, I am not certain at this point." The defendant replied that he was not "incompetent or anything" but "[i]t is just that I am in disagreement, there is a total breakdown in the relationship between me and my current attorney." He stated that to ensure he received a fair trial, he needed "until Friday [June 12, 1981] to obtain my own attorney or you can appoint an attorney at that time and I will handle the case pro se." ¹⁰ Gemeiner thereupon addressed the court, stating that the crime involved "carries a penalty of 20 to 40" and he related that "throughout the case" he had a problem of communication with the defendant.

After the luncheon recess, Gemeiner asked the court's permission to put on the record that the defendant "said that he will exercise his rights to examine the jurors and [that] he does not want me to participate in that aspect of the case." (Emphasis added.) The court then inquired: "Let me clarify this. You say you don't want your attorney to ask any questions of these jurors?" The defendant answered: "No. But I want him to assist me if I have any questions." The court further inquired of the defendant: "And you realize that you are waiving the right to have an attorney do this? This is something you are going to do yourself?" The defendant replied: "Correct." He was then asked if he understood that it was his responsibility to ask proper questions within the scope of the rules of the court and he answered that he did. The court then stated that Gemeiner would remain and that, if the defendant had any questions, Gemeiner could assist him in conducting the voir dire. Thereafter, a jury of six with two alternates was selected, that procedure being completed on Tuesday, June 9, 1981. ¹¹

I

The defendant claims that in granting his request to represent himself the court failed to follow the procedure prescribed by Practice Book § 961 ¹² for waiver of his constitutional right to counsel both during the selection of the jury and thereafter at trial. The rule of practice was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney in defending himself, which was held to be a federal constitutional right in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The right had received statutory protection in the federal courts by an enactment of the first Congress in 1789. Judiciary Act of 1789, 1 Stat. 92; see 28 U.S.C. § 1654. Prior to Faretta the view had been expressed that the right had a federal constitutional basis in the sixth amendment guaranty of the assistance of counsel, which implied a "correlative right to dispense with a lawyer's help." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942); see Faretta v. California, supra, 422 U.S. 814, 95 S.Ct. 2530. Our state constitution, article first, § 8, also guarantees this right: "In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel ...." The constitutions of thirty-six states expressly provide for self-representation of an accused. Faretta v. California, supra, 813 n. 10, 95 S.Ct. 2350 n. 10.

"A defendant in a criminal trial has a constitutional right to proceed without counsel as long as he voluntarily and intelligently elects to do so." Lyles v. Estelle, 658 F.2d 1015, 1020 (5th Cir.1981); State v. Nash, 149 Conn. 655, 662, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S.Ct. 130, 9 L.Ed.2d 104 (1962). Nothing more intricate than a voluntary and intelligent waiver of counsel is required of an accused to exercise his right to defend himself in person. Faretta v. California, supra, 422 U.S. 835, 95 S.Ct. 2541. "[A]...