State v. McClain

• Decision Date: 14 March 1969
• Docket Number: No. CR,CR
• Citation: 264 A.2d 581,6 Conn.Cir.Ct. 58
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Plummer McCLAIN. 6-38382.

Page 581

264 A.2d 581

6 Conn.Cir.Ct. 58

STATE of Connecticut v. Plummer McCLAIN.

No. CR 6-38382.

Circuit Court of Connecticut, Appellate Division.

Argued Sept. 25, 1967.

Decided March 14, 1969.

Thomas N. Wies, New Haven, for appellant (defendant).

Philip E. Mancini, Jr., Pros. Atty., for appellee (state).

MacDONALD, Judge.

To an information charging him with the crime of policy playing in violation of General Statutes § 53-298, the defendant pleaded not guilty and elected trial to the court. Following trial he was found guilty and has appealed, assigning as error (a) the court's denial of his motion to correct the finding; (b) the court's failure to make adequate inquiry as to whether he had knowingly waived his right to be represented by counsel; and (c) the court's denial of his motions for a continuance to obtain an attorney or to prepare his case pro se, and to obtain witnesses on his behalf.

The record before us shows pertinently the following: The defendant was originally arrested on February 7, 1966, on a warrant, dated the same day, charging him with the crime of policy playing, and was released on the posting of bond, and has to the present time remained free on bail; on February 28, 1966, he was presented in the Circuit Court in the sixth circuit and advised of his rights. General Statutes § 54-1b. Thereafter, various continuances were granted, for the large part at the request of the defendant, to September 7, 1966, on which date his trial to the court took place, as a result of which he was adjudged guilty of the crime of policy playing. The defendant was at no time herein referred to represented by counsel of record except in connection with the instant appeal.

We direct consideration to the first assignment of error. The defendant, in filing his appeal, failed to request a review of the court's conclusions on the facts and therefore waived his right to a finding. Practice Book § 979. The court, however, made a special finding which the defendant moved to correct, and it is from the denial of this motion that error has been assigned. In his motion to correct, the defendant sought to strike some eight paragraphs of the finding but failed to assert any reasons for the proposed corrections and has therefore not complied with the rules of practice. Practice Book § 981 & Form 819(B); see Russo v. Christian, 23 Conn.Sup. 442, 443, 1 Conn.Cir. 303, 304, 184 A.2d 186. Further, the defendant has attempted to strike three paragraphs of the finding which are conclusions. This is improper. Palumbo v. George A. Fuller Co., 99 Conn. 353, 356, 122 A. 63; Maltbie, Conn.App.Proc. § 171. The first assignment of error is not properly before us, and we therefore do not consider it further.

The special finding of the court, which may not be disturbed, is summarized as follows: ¹ Following his arrest on a warrant charging him with the crime of policy playing in violation of General Statutes § 53-298, the defendant pleaded not guilty and elected a court trial. Prior to September 6, 1966, the case had been assigned for trial on at least two occasions and the state had been ready for trial every week for some time. On one prior occasion the defendant received a continuance for the purpose of enabling him to retain counsel, and on September 6, 1966, the court assigned the case for trial on September 7, 1966. The defendant was present at the assignment and did not object but asked the prosecuting attorney to have certain witnesses for the defendant at the trial. On September 7, 1966, the case was reached for trial; the state was ready to proceed, and the court was informed by the prosecuting attorney that the defendant's witnesses were present. At this time, the defendant stated to the court that he did not have a lawyer or his witnesses, the reason being given that during the period between arrest and trial (some six months) he did not 'know anything about the case.' The court directed that the trial proceed. The trial proceeded immediately and was concluded on the same day, with the defendant being adjudged guilty as charged, and sentenced. Conclusions reached by the trial court were (a) that the defendant intended not to engage counsel but intended to use inaction in this respect as an excuse for obtaining repeated continuances, and (b) that by this continued neglect or refusal to engage counsel, the defendant waived his right to be represented by counsel.

Inherently, the second and third assignments of error set forth a claim of alleged abuse of discretion on the part of the trial court with underlying implications that such alleged abuse of discretion infringed on the defendant's constitutional rights. We review the record on the totality of circumstances therein set forth and emphasize that no issue existed throughout the trial stage as to the defendant's indigency. Rather, it is affirmatively indicated that at all stages, inclusive of appeal, the defendant was able financially to employ counsel of his own choice. Certain it is that the defendant 'could not defer his trial indefinitely on the claim that he was going to engage private counsel and, without any credible explanation, fail to take any effective steps to procure private counsel.' Nash v. Reincke,156 Conn. 339, 343, 240 A.2d 877, 879.

The refusal to adjourn the trial under all of the circumstances shown by this record was a matter within the discretion of the trial court and is subject to review on appeal only if there was an abuse of the court's discretion. Lewis v. Havens, 40 Conn. 363, 370; Rusch v. Cox, 130 Conn. 26, 32, 31 A.2d 457; see State v. Fay, 2 Conn.Cir. 369, 370, 199 A.2d 358.

In holding, as we do, that the trial court properly exercised its discretionary power, we are not unmindful of the rule that there is a presumption against waiver of constitutional rights. Carnley...