State v. Morel-Vargas

• Decision Date: 10 May 2022
• Docket Number: SC 20572
• Citation: 343 Conn. 247,273 A.3d 661
• Parties: STATE of Connecticut v. Nuelito MOREL-VARGAS
• Court: Connecticut Supreme Court

343 Conn. 247

273 A.3d 661

STATE of Connecticut

v.Nuelito MOREL-VARGAS

SC 20572

Supreme Court of Connecticut.

Argued October 22, 2021

Officially released May 10, 2022

Megan L. Wade, assigned counsel, with whom were James P. Sexton, assigned counsel, and, on the brief, Emily Graner Sexton, assigned counsel, and Meryl R. Gersz, assigned counsel, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Pamela Esposito, assistant state's attorney, for the appellee (state).

McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

McDONALD, J.

In this appeal, we must decide which procedures are required for a defendant to validly waive his right to testify on his own behalf at or during a criminal trial. The defendant, Nuelito Morel-Vargas, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree. On appeal, the defendant, who did not testify at trial, challenges defense counsel's purported waiver of his right to testify. Specifically, the defendant contends that defense counsel's representation on the record, in the presence of a defendant, that the defendant has waived his right to testify, together with the defendant's coincident silence, is insufficient to constitute a waiver of that right. We disagree with the defendant and conclude that the constitution does not require that a defendant, himself, personally assert the waiver of his right to testify on the record. Nevertheless, we acknowledge that an on-the-record canvass of a defendant is the best practice to ensure that the defendant's waiver of his constitutional right to testify is made knowingly, intelligently and voluntarily. Therefore, we exercise our supervisory authority to require, prospectively, that a trial court either canvass the defendant or, in certain circumstances, inquire of defense counsel directly to determine whether counsel properly advised the defendant regarding the waiver of his right to testify.

The jury reasonably could have found the following facts. In 2015, the defendant was charged with sexual assault in the first degree. The charges stemmed from a sexual assault that occurred after the defendant drove the victim, S,¹ home from a friend's party.

At trial, the defendant, a non-English speaker who required the use of an interpreter, did not testify in his own defense. As the prosecutor was deciding whether she would rest the state's case-in-chief, she indicated that, "if the defense [was] not going to put on evidence," she would proceed directly to closing argument. Defense counsel replied that it was unlikely that the defense would introduce evidence but requested "one last opportunity to briefly discuss with [his] client his decision to testify or not." Counsel further indicated: "We had extensive conversations about [the defendant's decision whether to testify] already, and I think we settled on a decision. But I just—after—we're at the point where he's now seen everything, and I just want to make sure that that is still where he's at." The court, while remaining on the bench, allowed a recess for defense counsel to confer with the defendant.

After the court returned from the recess, defense counsel informed the court, "I've had an opportunity to confer with my client, Your Honor, thank you; and he's not going to testify." The court responded, "[o]kay. Do you wish me to canvass in that regard, or are you all right?" Defense counsel replied, "I think we're all right." Thereafter, the state rested its case. The trial court then asked defense counsel whether the defense would present any evidence, and defense counsel indicated that the defense would "rest on the state's case." Subsequently, the jury found the defendant guilty, and he was sentenced to fifteen years of incarceration, execution suspended after eight years, followed by ten years of probation and registration on the sex offender registry for life. The defendant appealed to the Appellate Court from the trial court's judgment, and the appeal was transferred to this court.

The defendant raises two claims on appeal. First, he claims that the constitution² requires that the defendant, himself, affirmatively inform the trial court, either orally or in writing, that he is waiving his right to testify. As a result, the defendant contends, his counsel's in-court representation that the defendant waived his right to testify was invalid, and his conviction must be reversed. Although, in the defendant's view, the constitution requires an affirmative indication of the waiver of the right to testify on the record from the defendant personally, the defendant concedes that the constitution does not mandate the form that this particular waiver must take. Accordingly, the defendant requests that, consistent with the approach we took in State v. Gore , 288 Conn. 770, 786–90, 955 A.2d 1 (2008), we exercise our supervisory authority to create a procedural rule that would require trial courts to canvass defendants to ensure that the waiver of their right to testify is made knowingly, intelligently and voluntarily. Second, as a separate ground for reversing his conviction, the defendant argues that he was deprived of a fair trial due to certain instances of prosecutorial impropriety based on the prosecutor's excessive use of leading questions during her direct examination of S.

We conclude that defense counsel's in-court representation that the defendant waived his right to testify, together with the defendant's coincident silence, satisfied the constitutional requirement for a valid waiver. Nevertheless, because we recognize that an on-the-record canvass is the best practice, we exercise our supervisory authority over the administration of justice to require, prospectively, that a trial court, when presiding over a criminal trial, either canvass the defendant or, in certain circumstances, inquire of defense counsel whether counsel adequately advised the defendant regarding the waiver of his right to testify. Finally, we conclude that the defendant's claim alleging prosecutorial impropriety is unreviewable.

I

A

The defendant first contends that his conviction must be reversed because the trial court did not obtain an affirmative indication on the record from the defendant, himself, that he had personally waived his right to testify on his own behalf, as required by the federal and state constitutions. The defendant does not contend that he was unaware of his right to testify, that he intended to testify at trial, or that his counsel prohibited him from testifying. Instead, he argues that the trial court's failure to obtain an on-the-record waiver from the defendant himself merits reversal. The state argues that, although the right to testify is a personal constitutional right, it does not follow that, to effectively waive that right, the defendant himself must affirmatively articulate his waiver on the record. According to the state, although certain personal constitutional rights must be waived by a defendant on the record, the waiver of other personal constitutional rights—including the right to testify—can be accomplished through other means.

We begin with the standard of review and relevant legal principles. The defendant did not raise this claim at trial and seeks review pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). Under Golding , "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original; footnote omitted.) State v. Golding , supra, at 239–40, 567 A.2d 823 ; see In re Yasiel R. , supra, at 781, 120 A.3d 1188 (modifying third prong of Golding ). Because the record is adequate for review, and the defendant's claim, which alleges a violation of his fundamental right to testify, is of constitutional magnitude; see, e.g., Rock v. Arkansas , 483 U.S. 44, 51, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987) ; our inquiry focuses on whether the violation alleged by the defendant exists.

In Rock v. Arkansas , supra, 483 U.S. 44, 107 S.Ct. 2704, the United States Supreme Court held that there is a constitutional right to testify in one's own defense. Id. at 51, 107 S. Ct. 2704. We must now address significant questions concerning this right left unanswered by Rock . First, we must determine whether the right to testify is a tactical right, which defense counsel may waive on the defendant's behalf as a matter of trial strategy—an affirmative determination of which would end our inquiry; see, e.g., State v. Culbreath , 340 Conn. 167, 179, 263 A.3d 350 (2021) ("defense counsel may waive certain tactical trial rights that are not personal to the defendant ... as part of trial strategy" (internal quotation marks omitted))—or a personal constitutional right, which can be waived by the defendant alone. Second, if the right to testify in one's own defense is a personal constitutional right, we must decide what is constitutionally required to demonstrate that a criminal defendant, himself, knowingly, intelligently and voluntarily waived that right. Specifically, we must determine whether the record must contain some affirmative indication from a defendant, himself, that the defendant is waiving his right to testify, or, alternatively, whether defense counsel's in-court expression of the waiver on the defendant's behalf, combined with the defendant's silence...