State v. Hamilton

• Decision Date: 11 January 1994
• Citation: 228 Conn. 234,636 A.2d 760
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. William HAMILTON, Jr. 14704.

Page 760

636 A.2d 760

228 Conn. 234

STATE of Connecticut v. William HAMILTON, Jr.

14704.

Supreme Court of Connecticut.

Argued Sept. 22, 1993.

Decided Jan. 11, 1994.

Elizabeth M. Inkster, Asst. Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Linda Howe, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and BERDON, NORCOTT, KATZ and PALMER, JJ.

PETERS, Chief Justice.

The certified issue in this criminal appeal is the proper standard for appellate review of a trial court's denial of a motion for continuance to retain private counsel. The state charged the defendant, William Hamilton, Jr., with robbery in the first degree in violation of General Statutes § 53a-134(a)(2), burglary in the first degree in violation of General Statutes § 53a-101(a)(1), attempted assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-49(a)(2), and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37(b). A jury found the defendant guilty as charged and the trial court sentenced him to an effective term of imprisonment of thirty-five years. ¹

The defendant appealed to the Appellate Court, which reversed, in part, the judgment of the trial court, and remanded the matter for a new trial on the charge of carrying a pistol without a permit. State v. Hamilton, 30 Conn.App. 68, 618 A.2d 1372 (1993). ² The Appellate Court rejected, however, the defendant's claim that the trial court had abused its discretion in denying the defendant's request for a continuance to enable him to pursue the possibility of obtaining private counsel. We granted the defendant's petition for certification, limited to the issue of the propriety of the standard used by the Appellate Court in reaching this conclusion. ³ Although we disagree with the manner in which the Appellate Court articulated the applicable standard, we concur in its determination that the trial court did not abuse its discretion. We therefore affirm the judgment of the Appellate Court.

The decision of the Appellate Court recites the pertinent facts insofar as they relate to the request for a continuance. "A special public defender was appointed on October 30, 1990, to represent the defendant. The record discloses no attempt to substitute counsel between that date and August 1, 1991, when [the] trial began. The defendant, who was seventeen years old at that time and not free on bond, had his father, who was present, appointed as guardian, and the jury selection process began. Following the luncheon recess, the defendant's father failed to return to court. The court then summoned a family relations officer and appointed her guardian ad litem for that day, after it was determined that efforts to reach the defendant's father were unsuccessful. Jury selection was completed that same day and the matter was continued for the taking of evidence on August 5, 1991.

"The defendant's father again failed to appear on August 5, so the court appointed a second family relations officer as the defendant's guardian ad litem for purposes of the trial. The defendant's counsel then sought a continuance because the defendant had told him that his cousin, Jimmy Cooper, had an appointment that morning with a local attorney whom the defendant hoped to retain as private counsel. The court was informed that the public defender's office had verified this by calling Cooper and obtaining the name of the attorney being contacted. The court recessed in an attempt to get that attorney into court, and determined that although the defendant's cousin indeed had an appointment that morning, the attorney in question had canceled the appointment. The court also determined that Cooper ... had been represented by that attorney in the past, and that the attorney's schedule might make it difficult for him to handle the defendant's case.

"The court denied the defendant's request for a continuance, stating: 'You have a question of continuance for the purpose of counsel. And the only viable, articulable fact that you can point to whatsoever, is a phone call from a person named Cooper to the office of Gulash. The rest of the information clearly demonstrates to the court that this accused is under bond for a case he has previously been convicted of. I learn now he is under a sentence of twenty-five years. He has a bond in this case which has never been posted. [H]e has consulted with [private counsel] at the outset of his difficulties and has seen fit not to retain [such counsel]. There is no indication there is any ability to do so. No representations have been made to that other than Cooper has money but it would be for me to find out and for them to know. Well, this court does not have to go to that burden. The burden is on the defendant to demonstrate an ability. That not being demonstrated in this court on behalf of this application, the court finds no reasonable basis for this court to take this jury, which has been selected and returned here for duty and put them on a shelf and to close down a court of this state on the bold assertion that somebody named Cooper may or may not get a lawyer for the accused. No indication presently [is] obtainable from the lawyer that he is even available to take it on, never mind whether or not compensation required could be met by the parties. It is not a reasonable expectation on this court's [part]. I could not conclude that that is a reasonable request.' " State v. Hamilton, supra, 30 Conn.App. at 81-82, 618 A.2d 1372.

In his appeal to the Appellate Court, the defendant contended that the "denial of his request for a continuance constituted an abuse of discretion and violated his constitutional rights to due process under the sixth and fourteenth amendments to the United States constitution and article first, § 8, as amended, of the Connecticut constitution." Id., at 80-81, 618 A.2d 1372. The defendant also argued that the trial court's denial of his request for a continuance constituted an abuse of discretion "because it deprived him of his right to an attorney of his choice under the sixth amendment to the United States constitution." Id., at 83, 618 A.2d 1372. The Appellate Court noted, however, that "[t]he defendant ha[d] shown no specific prejudice to his defense as a result of this denial. There was no claim that counsel of record was unprepared to go forward. The defendant at no time claimed ineffective assistance of counsel." (Emphasis added.) Id., at 84, 618 A.2d 1372. Relying on the defendant's failure to show that the denial of his request for a continuance had demonstrably prejudiced his ability to defend himself, the Appellate Court concluded that the defendant had failed to establish that the trial court had abused its discretion. Id., at 85, 618 A.2d 1372.

I

We granted the defendant's petition for certification to determine whether the Appellate Court had applied the proper standard in its review of the trial court's denial of his request for a continuance. The defendant maintains that the Appellate Court gave undue weight to the absence of a showing of prejudice as manifested by the unchallenged adequacy of his representation by assigned counsel. He urges that such considerations are improper on a direct appeal because our holding in State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986), requires him to litigate any question relating to the ineffective assistance of his counsel in collateral proceedings by way of habeas corpus. We agree that the standard articulated by the Appellate Court improperly blurred the factors that enter into direct appellate review of the denial of a continuance.

The basic principles that govern continuances at trial are not in dispute. Once a trial has begun, neither a defendant's right to due process nor his right to be represented by counsel of his choice entitles him to a continuance upon demand. Sekou v. Warden, 216 Conn. 678, 686-89, 583 A.2d 1277 (1990) (trial day motion for continuance); State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986) (motion for continuance during jury selection); State v. Beckenbach, 198 Conn. 43, 47-50, 501 A.2d 752 (1985) (trial day motion for continuance). " 'In order to work a delay by a last minute [replacement] of counsel there must exist exceptional circumstances.' " State v. Drakeford, 202 Conn. 75, 83-84, 519 A.2d 1194 (1987). "The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion." State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987).

A reviewing court is bound by the principle that "[e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made." Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980); State v. Beckenbach, supra, 198 Conn. at 47, 501 A.2d 752. To prove an abuse of discretion, an appellant must show that the trial court's denial of a request for a continuance was arbitrary. State v. Beckenbach, supra. " 'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' " (Emphasis added.) Id., at 47-48, 501 A.2d 752.

In appellate review of matters of continuances, federal and state courts have identified multiple factors that appropriately may enter into the trial court's exercise of its discretion. Although the applicable factors cannot be exhaustively catalogued, they generally fall into two categories. One set of factors focuses on the facts of record before the trial court at the time when it rendered its decision. From this perspective, cou...