State v. Kerlyn T.

• Decision Date: 30 July 2019
• Docket Number: AC 40163
• Citation: 215 A.3d 1248,191 Conn.App. 476
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. KERLYN T.

191 Conn.App. 476

215 A.3d 1248

STATE of Connecticut

v.KERLYN T.^*

AC 40163

Appellate Court of Connecticut.

Argued March 14, 2019

Officially released July 30, 2019

James B. Streeto, senior assistant public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Sharmese Hodge, assistant state's attorney, for the appellee (state).

Prescott, Elgo and Pellegrino, Js.

PELLEGRINO, J.

The defendant, Kerlyn T., appeals from the judgments of conviction, rendered following a trial to the court, of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (1), home invasion in violation of General Statutes § 53a-100aa (a) (2), risk of injury to a child in violation of General Statutes § 53-21 (a) (1), assault in the second degree with a firearm in violation of General Statutes § 53a-60a (a), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and two counts each of threatening in the first degree in violation of General Statutes § 53a-61aa (a) (3),¹ and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). On appeal, the defendant claims that the court erred (1) in finding that his jury trial waiver was knowing, intelligent and voluntary, and (2) by failing to conduct an adequate inquiry into the underlying facts giving rise to his request to remove his privately retained counsel. Upon review, we conclude that the court did not err when it determined that the defendant's jury trial waiver was knowing, intelligent and voluntary, nor did it err when it denied the defendant's request to remove defense counsel midtrial without a more searching inquiry. Accordingly, we affirm the judgments of conviction.

In its oral decision, the court found the following relevant facts. On May 26, 2013, the defendant confronted and assaulted the victim. On May 28, 2014, the defendant broke into the victim's Danbury apartment armed with a semiautomatic assault style rifle. Although the victim was not present, the defendant remained in the apartment, concealing himself therein. The victim returned to the apartment later that evening accompanied by her minor child² and a coworker. Once inside, they were confronted by the defendant and held at gunpoint inside for approximately three hours. During that time, the defendant forcefully restrained the victim, bound her to a chair, taped her mouth shut and, thereafter, assaulted her both physically and sexually, while the minor child and the coworker were present in the apartment.

The defendant was subsequently arrested. The operative informations charged the defendant with aggravated sexual assault in the first degree in violation of § 53a-70a (a) (1), home invasion in violation of § 53a-100aa (a) (2), risk of injury to a child in violation of § 53-21 (a) (1), assault in the second degree with a firearm in violation of § 53a-60a (a), unlawful restraint in the first degree in violation of § 53a-95 (a), two counts of assault in the third degree in violation of § 53a-61 (a) (1), three counts of threatening in the first degree in violation of § 53a-61aa (a) (3), criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), strangulation in the second degree in violation of General Statutes (Rev. to 2013) § 53a-64bb (a), intimidating a witness in violation of General Statutes § 53a-151a, kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1),³ and criminal violation of a protective order in violation of General Statutes (Rev. to 2013) § 53a-223.

A six day trial to the court was held in February and May, 2016. At trial, the court heard testimony from, among others, the victim, the coworker, and the defendant relating to the May 26, 2013 confrontation and the May 28, 2014 home invasion. After largely crediting the testimony of the victim and the coworker, the court found the defendant guilty on nine counts.⁴ This appeal followed. Additional facts will be provided as necessary.

I

On appeal, the defendant first claims that the court erred when it determined that he knowingly, intelligently and voluntarily waived his right to a jury trial under the totality of the circumstances.⁵ Specifically, the defendant claims that his waiver was constitutionally inadequate because, despite stating that he was not ready to make such a decision, the choice was "imposed on [him] by the combined pressure of the court, the prosecutor, and [defense counsel]." The defendant further claims that, at a minimum, the court should have informed the defendant of, among other things, the number of jurors that comprise a jury panel and that a jury's verdict must be unanimous. We disagree.

The following additional facts are relevant to the defendant's claim. On January 22, 2015, following the defendant's arrest, Attorney Mark Johnson, a public defender, appeared before the court on behalf of the defendant and requested a formal competency evaluation of the defendant pursuant to General Statutes § 54-56d, on the basis of Attorney Johnson's belief that the defendant was unable to assist in his own defense.⁶ During an otherwise brief hearing, the court granted the motion after Attorney Johnson stated that the defendant's state of mind was impairing his ability to prepare a proper defense.

The competency evaluation was conducted on February 13, 2015, by the Office of Forensic Evaluations, which determined that the defendant, at that time, was not competent to stand trial. It further concluded that there was a "substantial probability [that the defendant] could be restored to competence within the maximum statutory time frame," and, therefore, "recommend[ed] an initial commitment period of sixty days ... [in] the least restrictive setting ...." (Emphasis added.) After the court adopted the evaluation, the defendant was admitted to Whiting Forensic Division of Connecticut Valley Hospital (Whiting) for treatment and rehabilitation. On May 7, 2015, the court, Russo , J. , adopted the conclusion of a second competency evaluation administered at Whiting on April 23, 2015, that determined that the defendant was competent to stand trial.⁷

On November 6, 2015, after the defendant rejected the state's offer of a plea agreement, the court notified the defendant that the matter would be placed on the trial list and that jury selection would commence the following month. On February 6, 2016, when the defendant appeared before Judge Russo for jury selection, the defendant requested that the court provide him with more time to consider whether to elect a jury trial or a court trial. The court denied his request.

At that hearing, defense counsel, Attorney Gerald Klein,⁸ was unable to ascertain whether the defendant wanted to elect a jury trial or a court trial and moved for a second § 54-56d competency evaluation due to his belief that the defendant was unable to continue assisting with his own defense. In response, the court engaged the defendant in a lengthy colloquy and permitted him to speak freely about various grievances, which ranged from his frustrations with the discovery process to an alleged assault that occurred during his confinement at Whiting.

At the conclusion of the colloquy, the court denied Attorney Klein's request for a second competency evaluation, stating: "[A]fter spending nearly [one and one-half hours] with [the defendant] on a number of topics, [I] cannot justify ordering the examination for a variety of reasons. For one, [the defendant] has presented himself here today, as I have witnessed him in the past, [as] a competent, articulate, [and] to steal a phrase from [Attorney] Klein, [as] a very measured individual, who, at least in my view, certainly understands the nature of the proceedings here in court, certainly understands the function of the personnel that are assembled in this very room, certainly understands the nature of the proceedings against him and the charges that have been alleged against him.... I also believe—and I realize that ... [Attorney] Klein may [disagree] on this point—that [the defendant] does have the ability to assist in his own defense.... So, I do not find that the examination at this point in time is justified."

The court proceeded to address the issue of whether the defendant would elect a jury or a court trial. Taking into account the defendant's earlier request for more time, the court provided an additional opportunity for the defendant to meet with Attorney Klein. After a forty minute recess, the defendant waived his right to a jury trial and elected a court trial. Prior to making that decision, the following canvass occurred on the record.

"The Court: ... I would ask both counsel to pay particular[ly] close attention to my questions. If I miss any, please let me know, so that we can complete the canvass.... [O]n the issue of waiving your constitutional right to a jury trial ... the United States constitution and our state constitution both mandate that you have a constitutional right to be tried by a jury of your peers. Do you understand that, [sir]?

"The Defendant: Yes, Your Honor.

"The Court: And after speaking with you and, equally as important, speaking with [Attorney] Klein, you have elected to waive that right to a jury trial and you've elected to have [what is] called a courtside trial, meaning that, likely me or someone like me, another Superior Court judge, would be the finder of fact in the trial and also would be the sentencing judge if you were found guilty.... Is that your understanding, [sir]?

"The Defendant: Yes, I understand ....

* * *

"The Court: [Sir], are you on any drugs or medication that would affect your ability to understand what I'm saying right now?

"The Defendant: No, Your Honor.

"The Court:...