State v. J.M.F.

• Citation: 170 Conn.App. 120,154 A.3d 1
• Decision Date: 10 January 2017
• Docket Number: AC 37200
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. J.M.F.

170 Conn.App. 120

154 A.3d 1

STATE of Connecticut

v.J.M.F.^*

AC 37200

Appellate Court of Connecticut.

Argued September 20, 2016

Officially released January 10, 2017

Moira L. Buckley, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and David I. Cohen, former state's attorney, for the appellee (state).

Lavine, Mullins and Harper, Js.

MULLINS, J.

The defendant, J.M.F., appeals from the judgment of conviction of attempt to commit murder in violation of General Statutes §§ 53a–49 (a) (2) and 53a–54a (a), assault in the first degree in violation of General Statutes § 53a–59 (a) (1), and risk of injury to a child in violation of General Statutes § 53–21 (a) (1). On appeal, the defendant raises the following seven claims: (1) the trial court abused its discretion by imposing a sanction against him that precluded him from raising an affirmative defense of mental disease or defect, ultimately violating his constitutional rights to present a defense and to due process of law; (2) the trial court erroneously concluded that he unequivocally invoked his right to self-representation and that he knowingly, intelligently, and voluntary waived his right to counsel; (3) the trial court deprived him of his right to due process of law by failing to order, sua sponte, that he undergo a competency evaluation; (4) the state unconstitutionally interfered with his right to counsel; (5) the trial court improperly continued to trial despite the existence of an appellate stay, which rendered the results of the trial void ab initio; (6) the trial court abused its discretion by not appointing a special public defender, ultimately violating his constitutional rights to counsel and to due process of law; and (7) the trial court violated his rights to due process of law and to present a defense when it refused his request to instruct the jury on renunciation and diminished capacity. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. After thirteen years of marriage, on January 4, 2010, the defendant's wife served him with divorce papers.

On January 6, 2010, two days after having received the divorce papers, the defendant asked his wife to withdraw the dissolution action; she refused to do so, but she did agree that she would file a motion for reconciliation if the defendant would agree to go to counseling. After putting the children to bed for the evening, the defendant and his wife retired to their bedroom.

In the bedroom, they began to discuss the ensuing divorce. As they did so, the defendant became enraged. He tackled his wife, knocking her to the floor, and he put his hands around her neck while slamming her head into the floor. The defendant told her: "I'm killing you." He repeatedly hit her in the face and body with his fists, pulled out her hair and put his hands around her neck. At one point, he threw her to the other side of the bedroom, where she landed in front of the fireplace. She "felt like [she] was dying [and] ... was in incredible pain." The defendant then knelt on top of her and repeatedly hit her in the face and head with a metal flashlight. She lost consciousness approximately three times during the attack.

After this attack, the defendant retreated to the master bathroom where he called to his wife, telling her that he was going to kill himself and that he needed her assistance to do so. She did not go into the bathroom, but, instead, believing she was dying and wanting to save her children, she accessed the security alarm in the bedroom. The defendant again became enraged and tackled her. He then told her that he was going to the kitchen to get a knife to cut his jugular vein. When the defendant went downstairs, she gathered up the children and drove them to the home of a neighbor. The neighbor called the police.

When the police arrived at the defendant's home, the defendant surrendered peacefully. The police located a belt, attached to a pole in the closet, which the defendant said he used to try to hang himself. The defendant was charged with and convicted of attempt to commit murder, assault in the first degree, and risk of injury to a child. He received a total effective sentence of fifteen years imprisonment, followed by five years of special parole, and the court imposed a full criminal restraining order. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

On appeal, the defendant first claims the trial court abused its discretion by imposing a sanction against him for his refusal to sign the authorization forms that were required by the state's expert before the expert would conduct a psychiatric examination of the defendant. In particular, the defendant argues that the sanction improperly precluded him from raising a mental disease or defect affirmative defense,¹ ultimately violating his constitutional rights to present a defense and to due process of law.

Specifically, the defendant argues: "Assuming, arguendo, that [he] violated the court's ... order, the trial abused its discretion by precluding him from asserting the mental disease or defect defense. The court's extreme remedy was unnecessary to protect the state from prejudice. The court failed to weigh the rationale for exclusion against the defendant's right to present a defense. Considering the factors articulated in [State v. Tutson , 278 Conn. 715, 899 A.2d 598 (2006), the defendant's] alleged violation was not substantive, but 'technical.' " The defendant further argues: "In circumstances such as this, preclusion of a defense should not be the court's knee jerk reaction where other less prejudicial remedies are available."

In response, the state argues that the trial court properly granted the state's motion to preclude defense "[a]fter concluding that the defendant had continually engaged in dilatory tactics with the intent of ambushing the state with regard to his defense of not guilty by reason of mental disease or defect .... In light of his failure to comply with Practice Book § 40–19,² preclusion was not abuse of discretion." (Citations omitted; footnote added.) We conclude that the court did not abuse its discretion.

To provide the proper context for the trial court's ruling and ensure a full understanding of the procedural history of this case, we set forth the following detailed facts, which inform our review of the defendant's claim. The defendant was arrested in relation to this case in January, 2010. Shortly thereafter, beginning in early 2010, he retained Attorneys Eugene J. Riccio and Timothy J. Moynahan to represent him. In September, 2010, the defendant requested a continuance to further consider the psychiatric aspects of his case, which the court granted. In April, 2011, the case was placed on the jury list.

On August 20, 2012, the court inquired as to whether the defendant intended to assert a defense of mental disease or defect. The defendant responded that he did not have the funds to be evaluated for such a defense at that time.³ Thereafter, on September 5, 2012, the defendant filed a notice of defense of extreme emotional disturbance. On November 13, 2012, the state represented that the attorneys in the civil assault action; see footnote 3 of this opinion; had agreed to release $25,000 from the prejudgment remedy attachment. The court continued the matter.

On January 25, 2013, the defendant filed an amended notice of his defense to include the defense of mental disease or defect. On February 1, 2013, the defendant asked for another continuance to work on his affirmative defense, which the court granted.

On March 22, 2013, the defendant informed the court that he was now working with Howard V. Zonana, a psychiatrist, on his affirmative defense, but that he needed more time. He requested a continuance to April 4, 2013, "to complete that work," which the court granted. The court explained, however, that it had set the matter down for trial to begin in the middle of April.

On April 4, 2013, the defendant informed the court that he now intended to represent himself during his criminal trial. The trial court informed the defendant that it did not want the trial in this matter to suffer any further delays, and it ordered the matter continued for a Faretta hearing. See Faretta v. California , 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (requiring inquiry by court when defendant seeks to waive counsel and represent himself).

On April 10, and April 12, 2013, the court conducted a Faretta hearing. On the first day of this hearing, April 10, 2013, the defendant stated that he "would welcome the assistance of a public defender." In response, the court inquired as to whether the defendant had applied for those services, and the defendant said he had not applied. The court then requested the presence of a representative from the public defender's office to determine whether the defendant qualified for services from that office. During this hearing, the defendant also confirmed that he was pursuing a defense of mental disease or defect. He also informed the court that he had been under psychiatric care for forty months, that he had engaged the services of a psychiatrist who was trained in the area of his defense and who was in the process of performing an examination of him. He further informed the court that he had engaged the services of a neuropsychiatrist, who also was doing neurological testing on him.

On the second day of the Faretta hearing, April 12, 2013, before proceeding with the hearing, the court heard from Attorney Barry Butler from the public defender's office. Butler informed the court that his office had concluded that the defendant was not indigent and, therefore, did not qualify for its services. The court then considered the defendant's request to represent himself, and ultimately granted his request. The court nonetheless appointed...