State v. Townsend

• Decision Date: 16 May 1989
• Docket Number: No. 13386,13386
• Citation: 211 Conn. 215,558 A.2d 669
• Parties: STATE of Connecticut v. Lawrence TOWNSEND.
• Court: Connecticut Supreme Court

Page 669

558 A.2d 669

211 Conn. 215

STATE of Connecticut v. Lawrence TOWNSEND.

No. 13386.

Supreme Court of Connecticut.

Argued March 28, 1989.

Decided May 16, 1989.

William F. Gallagher, Sp. Public Defender, with whom, on the brief, was Robert P. Borquez, Sp. Public Defender, for appellant (defendant).

Donald A. Browne, State's Atty., with whom, on the brief, was Henry J. Lyons, Assistant State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is whether the trial court erred in allowing self-representations by a defendant who adamantly sought to exercise this constitutional right. A jury found the defendant, Lawrence Townsend, guilty of murder in violation of General Statutes § 53a-54a. He appeals to this court from the judgment thereafter rendered by the trial court sentencing him to life imprisonment. We find no error.

The parties do not dispute the relevant facts. On the morning of February 18, 1986, the defendant entered the Gary Crooks Center in Bridgeport carrying a rifle under his coat and looking for the victim, Joseph Kelly. The defendant found and shot the victim, who died as a result of his gunshot wounds.

The evidence at trial also included the defendant's oral statement made upon his arrest. In his statement he admitted shooting the victim, explaining that he had done so because the victim had insulted the defendant's wife. The defendant stated that he was a Muslim, and Muslim law permitted him to kill any person who insulted his wife.

Before trial, the defendant informed the trial court, Reilly, J., that he intended to represent himself at trial. The court advised him of his right to self-representation or to representation by counsel, and told him it would appoint a public defender if the defendant desired. The defendant repeatedly declined counsel. The trial court warned him of the disadvantages of self-representation and canvassed him as to his education and prior experience with the legal system. After this colloquy the court agreed to allow the defendant to exercise his constitutional right to represent himself, but, over the objections of both the defendant and the public defender's office, appointed the public defender's office as standby counsel in the event the defendant should want to consult with an attorney during trial. Subsequently, a special public defender was appointed to represent the defendant.

The defendant also made two motions for a change of venue. The trial court, Curran, J., denied the first motion because the defendant had presented no evidence warranting such a change. The defendant renewed his motion before the trial court, McKeever, J., which, upon completion of the jury voir dire, denied the motion, finding "no actual bias" in any of the selected jurors or alternates.

After the state had put on its case over the course of two days, the defendant presented no evidence or witnesses on his behalf. The defendant had cross-examined a witness for the state concerning the defendant's own mental state just before the shooting. In his summation the defendant briefly stated that he "did not calculate any of these events" and that "what you heard and the witness says is what transpired."

The trial court instructed the jury on murder and on first and second degree manslaughter. The jury found the defendant guilty of murder and the trial court sentenced him to life imprisonment. On appeal the defendant claims that the trial court erred in allowing him to represent himself and in denying his motions for a change of venue.

I

The defendant's claim that the trial court erred in allowing him to represent himself at trial comes to us in two versions. First, he claims that the trial court did not properly determine his competency "knowingly and intelligently" to waive his right to representation by counsel. Second, he claims that the trial court failed to comply with Practice Book § 961. We disagree with both claims.

Neither party disputes that a defendant has an inherent right, under our federal and state constitutions, ¹ to represent himself at trial should he choose to do so. McKaskle v. Wiggins, 465 U.S. 168, 173-74, 104 S.Ct. 944, 948-49, 79 L.Ed.2d 122, reh. denied, 465 U.S. 1112, 104 S.Ct. 1620, 80 L.Ed.2d 148 (1984); Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); State v. Williams, 203 Conn. 159, 167, 523 A.2d 1284 (1987); State v. Carter, 200 Conn. 607, 611, 513 A.2d 47 (1986); State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II ); State v. Gethers, 193 Conn. 526, 532-33, 480 A.2d 435 (1984) (Gethers I ). In electing to defend himself, however, a defendant waives his right to representation by counsel, another fundamental constitutional right recognized by our federal and state constitutions, and waives all of the benefits that traditionally attend that right, about which the United States Supreme Court has held "that the help of a lawyer is essential to assure the defendant a fair trial." ² Faretta v. California, supra 422 U.S. at 832-33, 95 S.Ct. at 2539-40; see also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gethers II, supra. Thus, to accommodate this inherent tension the court has held that "in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits." Faretta v. California, supra, 422 U.S. at 835, 95 S.Ct. at 2541; Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1984); see Johnson v. Zerbst, supra, 304 U.S. at 464-65, 58 S.Ct. at 1023.

Practice Book § 961 ³ "was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney in defending himself...." Gethers I, supra, 193 Conn. at 532, 480 A.2d 435. Section 961 requires the judicial authority, before allowing a defendant to represent himself, to make a thorough inquiry to satisfy itself that the defendant: (1) has been advised of his right to assistance of counsel; (2) possesses sufficient intelligence and capacity to appreciate the consequences of his choice; (3) comprehends the nature of the charges, proceedings, punishment and other facts necessary to a broad understanding of the case; and (4) is aware of the dangers and disadvantages of self-representation. The defendant contends that the trial court did not sufficiently canvass him to determine that he possessed sufficient intelligence to appreciate the consequences of self-representation and also did not determine that he comprehended the nature of the charges and proceedings. In short, he argues that the court should have held a competency hearing to determine his competence to represent himself. We conclude that the trial court sufficiently canvassed the defendant.

"When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins." Gethers I, supra, 534, 480 A.2d 435. Put another way, a defendant properly exercises his right to self-representation by "knowingly and intelligently" waiving his right to representation by counsel. Because this is so, Practice Book § 961 "cannot be construed to require anything more for an effective waiver of counsel than is constitutionally mandated, because such a waiver triggers the constitutional right of an accused to represent himself." Id. Thus, the defendant's dual arguments as to this claim devolve into a single inquiry: did the defendant "knowingly and intelligently" waive his right to representation by counsel and thus properly exercise his right to self-representation?

" '[W]hether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.' " Gethers I, supra, 534, 480 A.2d 435, quoting Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S.Ct. at 1023. The caselaw and commentary indicate, as does Practice Book § 961, that in order to find that a defendant has "knowingly and intelligently" waived his right to counsel, and thus has elected to exercise his right to self-representation, a trial court should inform the defendant of his right to counsel and that the dangers and disadvantages of self-representation make it most often advisable to have counsel. Further the court should ascertain, through an appropriate inquiry, that the defendant possesses the intelligence and capacity to make the choice and to appreciate the consequences of his decision to represent himself. Faretta v. California, supra, 422 U.S. at 835-36, 95 S.Ct. at 2541-42; United States v. Plattner, 330 F.2d 271, 276 (2d Cir.1964); Gethers I, supra, 193 Conn. at 534-36, 480 A.2d 435; 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 11.5(c), pp. 44-47. 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, supra, p. 46. ⁴ 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.; Gethers I, supra, 193 Conn. at 536, 480 A.2d 435.

In this case we conclude that the record amply supports the trial court's determination that the defendant "knowingly and intelligently" waived his right...