State v. Oliphant

• Citation: 702 A.2d 1206,47 Conn.App. 271
• Decision Date: 09 December 1997
• Docket Number: No. 15393,15393
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Anthony OLIPHANT.

Page 1206

702 A.2d 1206

47 Conn.App. 271

STATE of Connecticut v. Anthony OLIPHANT.

No. 15393.

Appellate Court of Connecticut.

Argued Sept. 16, 1997.

Decided Dec. 9, 1997.

Paul R. Kraus, Special Public Defender, for appellant (defendant).

Rita M. Shair, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Mary Elizabeth Baran, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and SCHALLER, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of larceny in the first degree in violation of General Statutes § 53a-122. ¹ On appeal, the defendant claims that the trial court improperly (1) failed to conduct an adequate canvass of the defendant prior to accepting his waiver of the right to counsel, (2) denied the defendant the effective assistance of standby counsel, and (3) concluded that the evidence presented at trial was sufficient to prove the defendant's guilt beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, Anthony Oliphant, was the recipient of welfare assistance payments from the city of Hartford from May 10 through September 30, 1993. He was then declared ineligible because he failed to submit a case plan setting forth his specific needs, such as job training or substance abuse treatment. He later reapplied for benefits from Hartford, and his application was granted. He resumed receiving benefits from November 25, 1993, through June 30, 1994.

In July, 1993, the defendant applied for welfare benefits from the city of Meriden under the alias of Jerome Martin without informing the welfare office that he was simultaneously receiving benefits from Hartford under the name of Anthony Oliphant. The defendant provided documents that supported his application in the name of Jerome Martin. As a result, the defendant received welfare benefits from Meriden from July 23, 1993, through December 27, 1994. The defendant, therefore, received duplicate welfare benefits from Hartford and Meriden for two separate time periods: July 23 to September 30, 1993, and November 25, 1993, to June 30, 1994. The defendant received total benefits from Meriden in the amount of $5518.46, which formed the basis of the larceny charge.

At the defendant's arraignment, a public defender, Michael Moscowitz, was appointed to represent him at trial. Moscowitz had represented the defendant in two prior proceedings. On the first day of jury selection, the defendant expressed dissatisfaction with Moscowitz and requested a different public defender. The trial court denied that request. The defendant then expressed his desire to represent himself in this matter. The trial court then proceeded to question the defendant as to his understanding of the implications of his waiver of counsel pursuant to Practice Book § 961. ² I

The defendant first claims that his canvass by the trial court regarding his waiver of the right to counsel on the eve of trial was insufficient pursuant to Practice Book § 961. ³ A criminal defendant's right to counsel is a fundamental right guaranteed by both our federal and state constitutions. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984). In addition, a criminal defendant enjoys the constitutional right to self-representation at trial, provided he knowingly and intelligently waives the right to counsel. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); see also State v. Gethers, supra, at 533, 480 A.2d 435, citing Lyles v. Estelle, 658 F.2d 1015, 1020 (5th Cir.1981); see generally annot., 98 A.L.R.3d 13 (1980). The court in Faretta articulated the standard in the following manner: "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." Faretta v. California, supra, at 835, 95 S.Ct. at 2541; see also Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

Practice Book § 961 sets forth the criteria that must guide the trial court in ascertaining whether the waiver of counsel is made properly by the defendant. ⁴ Section 961 " 'was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney in defending himself....' " State v. Townsend, 211 Conn. 215, 219, 558 A.2d 669 (1989), quoting State v. Gethers, supra, 193 Conn. at 532, 480 A.2d 435. "Some of the factors bearing on the defendant's capacity include age, education, mental health, prior experience with criminal trials and consultation with counsel prior to proceeding pro se, although none of these inquiries is a constitutional necessity. 2 W. LaFave & J. Israel, [Criminal Procedure (1984) § 11.5(c) ], p. 46. However, a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation.... Faretta v. California, supra, [422 U.S. at 835, 95 S.Ct. at 2541]. Rather a record that affirmatively shows that [he] was literate, competent, and understanding, and that he was voluntarily exercising his informed free will sufficiently supports a waiver. Id.; [State v. Gethers, supra, at 536, 480 A.2d 435]." (Internal quotation marks omitted.) State v. Townsend, supra, at 221, 558 A.2d 669.

In this case, the defendant stated clearly on the record that he did not want to proceed with the public defender appointed by the court. Knowing that the court would not appoint another public defender, he preferred to represent himself. The trial court then questioned the defendant to ensure that he understood the consequences of his decision to waive his right to counsel. The trial court informed the defendant of the potential exposure that he faced in terms of imprisonment. The court also expressed, on the record, its reluctance to allow the defendant to proceed pro se in this matter, unless convinced that this was clearly what the defendant desired. The trial court then questioned the defendant further and, as a result, was satisfied that the defendant clearly wanted to proceed pro se.

While a review of the trial court's canvass may indicate that the defendant may have preferred to have a public defender other than Moscowitz, our law is clear that a criminal defendant does not have the right to have the public defender of his choice. McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982); State v. Nash, 149 Conn. 655, 662-63, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S.Ct. 130, 9 L.Ed.2d 104 (1962). In addition, our Supreme Court stated that the mere fact that the defendant would have preferred to retain private counsel of his choice, could he have afforded such counsel, does not make the waiver of a court-appointed attorney involuntary. State v. Day, 233 Conn. 813, 829-30, 661 A.2d 539 (1995). As long as the defendant clearly and unequivocally indicates that he wants to proceed pro se instead of proceeding with the public defender appointed for him, his waiver of counsel is knowing and voluntary. Id. In this case, the defendant made it clear that he did not want to proceed with Moscowitz and understood that a rejection of Moscowitz meant that he would be proceeding pro se. Therefore, the mere fact that he would have preferred to proceed with another attorney is irrelevant to whether the § 961 waiver of counsel was proper.

With respect to the defendant's intelligence and capacity to understand the consequences of his choice, the record reveals that the trial court was familiar with the defendant because, as the defendant himself stated on the record, the trial judge had presided over proceedings involving the defendant on two previous occasions. ⁵ The trial court, therefore, possessed knowledge of the defendant's intelligence and capacity to understand the proceedings even prior to conducting the § 961 canvass of the defendant. See State v. Siano, 20 Conn.App. 369, 375, 567 A.2d 1231 (1989), aff'd, 216 Conn. 273, 579 A.2d 79 (1990) (court may take judicial notice of facts available to trial court at time of trial). The record reveals that the defendant was familiar with legal proceedings generally and trial tactics specifically. In fact, immediately after the trial court's canvass, the defendant filed several pretrial motions with the court, demonstrating his familiarity with legal procedures and practices. As a result, the trial court was properly satisfied that the defendant's waiver of counsel was knowing and intelligent in conformity with § 961.

In State v. Gethers, supra, 193 Conn. 526, 480 A.2d 435, our Supreme Court noted that once there is a reasonable basis to believe that the requirements of § 961 have been satisfied, the failure to question the defendant formally concerning each particular element in § 961 is not fatal. "Although a more formal inquiry involving specific consideration of each element of the rule is preferable, our principal concern is not form but substance. Even if there had been an omission, the constitutional right of the defendant to defend himself could not have been denied unless it were shown that his waiver of counsel was involuntary or uninformed." Id., at 539, 480 A.2d 435.

We conclude that the defendant's responses to the trial court's questions during the canvass, under the circumstances of this case, were sufficient to satisfy the requirements of § 961. As a result, the trial court properly found that the defendant's waiver of counsel was knowingly and intelligently made.

II

The defendant next claims that the trial court denied him the...