State v. Jordan, No. 29163.

• Decision Date: 29 December 2009
• Docket Number: No. 29163.
• Citation: 118 Conn.App. 628,984 A.2d 1160
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Victor L. JORDAN.

984 A.2d 1160

118 Conn.App. 628

STATE of Connecticut v. Victor L. JORDAN.

No. 29163.

Appellate Court of Connecticut.

Argued September 24, 2009.

Decided December 29, 2009.

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

C. Robert Satti, Jr., supervisory assistant state's attorney, with whom, on the

brief, were John C. Smriga, state's attorney, and Jonathan C. Benedict, former state's attorney, for the appellee (state).

DiPENTIMA, ROBINSON and MIHALAKOS, Js.

ROBINSON, J.

The defendant, Victor L. Jordan, appeals from the judgment of conviction, rendered after a jury trial, of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). On appeal, the defendant claims that the court improperly (1) denied his request to represent himself, (2) restricted cross-examination and (3) allowed the state to make a missing witness argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 2, 2004, at approximately 2:20 a.m., the defendant was operating a motorcycle northbound on Interstate 95, just past exit thirty. 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. The state charged the defendant with manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(3), misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a) and reckless endangerment in the first degree in violation of § 53a-63 (a).

On January 24, 2007, the court heard the defendant's motion to dismiss counsel. The defendant requested that his attorney, William R. Schipul, be dismissed and that either he be allowed to represent himself or a special public defender be appointed as counsel or standby counsel. The defendant argued that he was unhappy with the fact that his trial was delayed because his attorney was on trial for another client and that the defendant was "willing to handle [his] case." The defendant also proposed that there was a conflict of interest between him and his attorney because his attorney had represented a codefendant in a case seventeen years before. Finally, the defendant argued that he disagreed with his attorney's determination not to present forensic experts.¹ The court denied this motion on the ground that it had heard no substantive reason to grant the motion.

In February, 2007, at trial, the defendant questioned Ringor about whether his license was suspended at the time of the accident and whether he had ever received any speeding tickets. The court ruled that evidence of prior license suspension was not admissible and that testimony concerning past speeding tickets was not relevant. The court further stated that "even if it were relevant, it would be a classic application of § 4-3 of [the Connecticut] Code of Evidence."² The defendant then requested that he be allowed to ask Ringor about his citizenship in front of the jury to show motive to fabricate facts about the accident. The court found that Ringor's citizenship status was irrelevant to a motive to lie about the accident and sustained the state's objection. Last, the defendant questioned Ringor about his knowledge of a lawsuit concerning the accident and whether he had spoken to an attorney and an insurance agent about the case. The court found that reference to a lawsuit in front of the jury was irrelevant and improper, but stated that the defendant was free to request any discovery materials regarding the lawsuit from the attorneys involved.

On March 6, 2007, the state filed a motion for permission to argue to the jury the matter of missing witnesses who had not been called by the defendant to testify at trial—Cook, Ellis and Washington. The state argued that Cook and Ellis were in the car with Hutchings another witness, and could, therefore, provide testimony as to what they saw, and that the state had asked if they were available to testify and that Howard and Hutchings indicated that they were available. Further, the state argued that Washington was on the back of another witness' motorcycle and could have been in a position to see the collision. The defendant argued that the testimony of Ellis and Cook would be duplicative and that, due to the way that passengers on motorcycles are seated, Washington was not in a position to see anything. The court granted the state's motion and noted that the defendant was allowed to make similar arguments in rebuttal.

On March 8, 2007, the jury returned a verdict of guilty as to the third charge of reckless endangerment but was deadlocked on the first and second charges of manslaughter in the first degree and misconduct with a motor vehicle. The court declared a mistrial on the first and second counts and accepted the guilty verdict on the count of reckless endangerment. The court then sentenced the defendant to time served, which amounted to approximately fifteen months in pretrial detention. This appeal followed.

I

We begin our analysis with the defendant's claim that the court improperly denied his request to represent himself because the court failed to canvass him before denying his request. "[T]he United States Supreme Court [has] concluded that the sixth amendment embodies a right to self-representation and that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." (Emphasis in original; internal quotation marks omitted.) State v. Flanagan, 293 Conn. 406, 417, 978 A.2d 64 (2009). Practice Book § 44-3 was implemented to ensure that a defendant's request to represent himself is actually voluntary and intelligent by requiring the court to conduct an inquiry into the defendant's awareness of the consequences of his request before allowing him to represent himself.³

State v. Flanagan, supra, at 419, 978 A.2d 64. The requirement that a court canvass a defendant is not triggered, however, until it has been established that the defendant clearly and unequivocally requested to represent himself. Id., at 421, 978 A.2d 64. The first piece of the analysis, therefore, is whether the defendant's request to represent himself was clear and unequivocal.

A

The defendant claims that he clearly invoked his right to represent himself by filing a motion to dismiss counsel with the court and through his statements during the hearing on the motion. In the defendant's motion to dismiss counsel, he requested that the court remove Schipul and either allow the defendant to proceed pro se or appoint a special public defender to represent the defendant or to serve as standby counsel. In response to questions from the court as to why the defendant wanted to dismiss Schipul as counsel, he stated that he previously made clear that he would handle his case as a self-represented litigant and was "willing to do [so] under the circumstances at this moment and time." After expressing dismay about the amount of time it was taking to reach trial, the defendant again said, "I'm willing to handle my case and have this case brought to trial." We do not agree that this was a clear and unequivocal request to represent himself.

"[W]hether the defendant's request was clear and unequivocal presents a mixed question of law and fact, over which ... our review is plenary." State v. Flanagan, supra, 293 Conn. at 420, 978 A.2d 64. Accordingly, we review the issue of whether the defendant's request was clear and unequivocal de novo. Id., at 420 n. 10, 978 A.2d 64. "The threshold requirement that the defendant clearly and unequivocally invoke his right to proceed pro se is one of many safeguards of the fundamental right to counsel." Id., at 423, 978 A.2d 64. "To invoke his [s]ixth [a]mendment right [to self-representation] under Faretta [v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)] a defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to his request. Insofar as the desire to proceed pro se is concerned, [a defendant] must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made." (Internal quotation marks omitted.) State v. Flanagan, supra, at 423-24, 978 A.2d 64.

As our Supreme Court previously has observed, however, "[t]he right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins.... Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel.... When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must knowingly and intelligently [forgo] those relinquished benefits." (Internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 508, 973 A.2d 627 (2009).

The defendant did not clearly choose the right to represent himself over the right to be represented by counsel. Rather, he requested, in his motion to dismiss counsel, that he either be permitted to represent himself or be appointed new counsel or standby coun...