State v. Jordan

• Decision Date: 29 May 2012
• Docket Number: No. 18542.,18542.
• Citation: 44 A.3d 794,305 Conn. 1
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Victor L. JORDAN.

305 Conn. 1

44 A.3d 794

STATE of Connecticut

v.Victor L. JORDAN.

No. 18542.

Supreme Court of Connecticut.

Argued Feb. 9, 2012.

Decided May 29, 2012.

Pamela S. Nagy, special public defender, for the appellant (defendant).

C. Robert Satti, Jr., supervisory assistant state's attorney, with whom, on the brief, was John C. Smriga, state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.

ROGERS, C.J.

This case presents the question of whether the defendant, Victor L. Jordan, clearly and unequivocally asserted his constitutional right to self-representation, thus triggering the trial court's responsibility to canvass him pursuant to Practice Book § 44–3.¹ The defendant appeals from the Appellate Court's judgment affirming the judgment of conviction, rendered after a jury trial, of reckless endangerment in the first degree in violation of General Statutes § 53a–63.² He claims that the Appellate Court improperly concludedthat: (1) his request to represent himself was not clear and unequivocal; and (2) his right to cross-examine a witness was not improperly restricted. We agree with the defendant's first claim and, accordingly, reverse the judgment.

The Appellate Court's decision recounts the following facts, which the jury reasonably could have found. “On May 2, 2004, at approximately 2:20 a.m., the defendant was operating a motorcycle northbound on Interstate 95, just past exit thirty [in the town of Stratford]. Jennifer Diaz was a passenger on the defendant's motorcycle. The defendant was driving alongside Rodney Howard, who was driving a motorcycle with passenger Country Washington, and George Hutchings, who was driving a car with passengers Corey Cook and Tonya Ellis. While operating the motorcycle at an excessive rate of speed, the defendant struck a motor vehicle operated by Ricardo Ringor, causing Diaz to be ejected from the motorcycle. Diaz sustained fatal injuries from the accident.” State v. Jordan, 118 Conn.App. 628, 630, 984 A.2d 1160 (2009).

In March, 2005, the defendant was charged with, inter alia, reckless endangerment in the first degree in connection with the incident. Pending trial, he was incarcerated, initially due to his conviction on unrelated charges and, thereafter, because of his inability to post bond on the charges relating to Diaz' death.³ The defendant initially was represented by Attorney David Abbamonte. On June 30, 2005, the defendant filed a motion to dismiss Abbamonte and, on November 2, 2005, following a canvass by the trial court, Fasano, J., he was permitted to assume representing himself while Abbamonte acted as standby counsel. The defendant represented himself for approximately seven months.⁴ On May 31, 2006, another attorney,William R. Schipul, was appointed to represent the defendant, initially as standby counsel and then as full counsel.⁵

On December 7, 2006, after being held for approximately one year on the charges alleged in the present matter, the defendant filed a pro se motion for a speedy trial.⁶ At a December 13, 2006 hearing on the motion, the trial court, Comerford, J., and Schipul discussed Schipul's schedule, which required him to finish two other trials, including a murder trial, before he could try the defendant's case. After the trial court informed the defendant that his trial would commence when Schipul was finished with the other two matters, the defendant replied: “I filed the motion pro se, Your Honor.... I'll deal with my speedy trial pro se. I don't need the attorney.” The trial court directed the defendant to deal with his motion through Schipul, to which the defendant responded: “I want it on the record I made it clear to Your Honor.” The court then told the defendant to “[k]eep quiet” and adjourned the hearing.

On January 23, 2007, the defendant filed a pro se motion to dismiss counsel in which he claimed that Schipul had a conflict of interest, was not fulfilling his professional responsibilities and had failed to retain a forensic expert. The defendant also referred to his previous speedy trial motion and his expectation that he be tried timely, and stated in his motion that “counsel has informed [the] defendant that his services are required elsewhere, therefore making him unavailable to the defendant for his pending trial.” As relief, the defendant requested that the trial court “either dismiss ... Schipul as [the] defendant's counsel and allow [the] defendant to file pro se [pursuant to Practice Book §] 44–3 or appoint a special public defender as counsel or standby counsel [pursuant to Practice Book §] 44–4.” ⁷

The defendant's motion to dismiss counsel was heard before Judge Comerford on January 24, 2007. At the hearing, Schipul began by stating that he and the defendant had experienced a disagreement and a breakdown in communication, and that he thought the motion to dismiss counsel should be granted for those reasons, if not those stated in the motion. The trial court asked the defendant to explain the alleged conflict of interest that he noted in his motion to dismiss counsel, and the following colloquy ensued regarding the defendant's desire for a speedy trial:

“The Defendant: ... I made clear to you and ... Schipul last time I was here. This [is] why I was upset. I wanted my speedy trial to proceed according to Connecticut General Statutes. So I would go to trial today, right now, if [the prosecutor] was ready to go to trial. It seems like the— “The Court: [The prosecutor] is ready to go to trial. Your lawyer is on trial presently.

“The Defendant: I understand that. The fact I'm making clear is ... Schipul is not Victor Jordan, Victor Jordan, docket CR0526401. No other case is. No other one. No other documents. So when I filed for that speedy trial, I expected it to be heard.

“The Court: How do you expect your lawyer to try two cases at a time?

“The Defendant: I informed him beforehand. I informed him when I came out here, told him I expected my trial [to be] heard in thirty days.

“The Court: How is he going to do that if he's on trial in another case?

“The Defendant: Then he could step down. And I also made clear to you, Your Honor, that day I would handle my case pro se, which I'm willing to do under the circumstances at this moment and time. I have the file. I'd file probably a couple more motions, a costs and waive fees which I filed with [Judge Fasano], which he denied without prejudice until I find an expert witness I was trying to obtain for the past year and a half. And I informed my counsel, the late David Abbamonte, and ... Schipul, to turn over to the state's attorney a witness list, et cetera. It's been over a year and a half, eighteen months, if not before, I was discharged on my last sentence. I've been cooperating the whole time with the state, and my counsel, and the whole time I've been getting—you know—literally shafted. So I'm willing to handle my case, and have this case brought to trial.

“The Court: Why don't we handle your motion first, so I understand what you're saying?

“The Defendant: Your—

“The Court: Let me finish talking. All right? Then you talk. Okay? Do we understand each other ...? Do we understand one another? That's a simple yes or no from you.

“Take him out. Talk to him, Mr. Schipul.” (Emphasis added.)

Following a recess, the defendant and Schipul returned to the courtroom, and there was further discussion regarding the other allegations in the defendant's motion to dismiss counsel. Specifically, the defendant expressed a belief that Schipul was biased due to his representation of the defendant's codefendant in a previous unrelated matter, and he complained that Schipul had failed to take steps the defendant believed were necessary for his defense, in particular the retention of a forensic expert. In response to each of the defendant's assertions, Schipul explained briefly why he disagreed. The trial court then asked whether the defendant previously had sought to dismiss counsel, and the clerk and the state's attorney informed the court of the defendant's previous period of self-representation.

The trial court then inquired as to Schipul's schedule, and Schipul advised the court that he likely could commence jury selection on the defendant's case within a few weeks. The state confirmed that it was ready to begin at any time, and had been for several weeks. At that point, without any further inquiry of the defendant, the trial court stated that it was going to deny the defendant's motion “on the grounds that [it] has heard no substantive reason therefor based upon the dialogue I had with the defendant, with defendant's counsel, and with the state's attorney in this matter here today.”

Immediately thereafter, the court began to address a motion to compel disclosure of witnesses that the state had filed. Schipul, during the course of argument on the state's motion, alerted the court to its denial or failure to address the defendant's request to represent himself. Specifically, while arguing that the state also should provide a complete list of the witnesses it intended to call, Schipul stated: “I don't know what the next step is going to be in this case. Is the [defendant] going to represent himself? I've indicated that there is a reason why I feel that the [defendant's] motion should have been—should be granted, not contained in the motion. So it would be a benefit, I think, to all parties if something were simply laid out for the defense, as well as the state, to advance the proceedings.” The trial court did not respond to Schipul's concern other than to direct that the state provide a witness list. When argument on the state's motion to compel concluded, the court adjourned the hearing.

Following the selection of a jury, the defendant's trial was held before a different judge, Blue, J., between February 22 and March 5, 2007. ⁸ On March 8, 2007, the jury returned a verdict of guilty on the charge of reckless...