State v. Turner, No. 33013.

• Decision Date: 28 February 2012
• Docket Number: No. 33013.
• Citation: 133 Conn.App. 812,37 A.3d 183
• Parties: STATE of Connecticut v. Kurtis TURNER.
• Court: Connecticut Court of Appeals

133 Conn.App. 812

37 A.3d 183

STATE of Connecticut

v.Kurtis TURNER.

No. 33013.

Appellate Court of Connecticut.

Argued Oct. 18, 2011.Decided Feb. 28, 2012.

Deborah G. Stevenson, special public defender, for the appellant (defendant).

Stephen M. Carney, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and John P. Gravalec–Pannone, senior assistant state's attorney, for the appellee (state).

ALVORD, ESPINOSA and BISHOP, Js.

ESPINOSA, J.

The defendant, Kurtis Turner, appeals from the judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a–54a (a). The defendant claims that the trial court improperly (1) refused to appoint a public defender of his choice to represent him, in abuse of its discretion and in violation of his state and federal constitutional rights to a fair trial and to equal protection of the laws, and (2) denied his motion for a judgment of acquittal when the evidence was insufficient to convict him of murder. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In June, 2007, the defendant was living in an apartment in New London with Curtis McGill. McGill had, on several occasions, sold the drug PCP to Lakisha Alexander, the sister of Vernall Marshall, the victim. At some point during or near in time to April, 2007, Alexander stole some PCP from McGill's apartment. McGill later discovered that she had done so and told her that she owed him a favor.

On June 19, 2007, Alexander, the victim, and two of the victim's friends encountered McGill, who was alone, on Bank Street in New London. The victim approached McGill, and the two of them conversed apart from the others. During the conversation, the victim told McGill that he would not let McGill disrespect his sister. After talking with McGill for two to five minutes, the victim walked back to Alexander and the others. McGill appeared to be upset, remarking several times that he felt threatened.

Subsequent to this encounter with the victim, McGill made a telephone call, and, three to five minutes later, a car came down Bank Street and parked next to McGill. Three individuals got out of the car, one of whom was the defendant, who was holding a gun. The defendant waved the gun in the air and pointed it at the victim, proclaiming, “I'll do anybody out here,” “You want to die?” and, “somebody is going to die.” After approximately one minute, McGill told the defendant to stop, and the defendant lowered the gun and returned to the car with the other two individuals. The three of them left in the car, and McGill walked away from the victim, Alexander and the others. On the way back to the apartment, the defendant repeatedly remarked that “[w]ithin forty-eight hours somebody is going to die.”

On the night of June 20, 2007, the victim was in New London having drinks with friends. He had gone into New London with his friend, Shannon Johnson, and later that evening he met up with Alexander. In the early morning hours of June 21, 2007, the victim again met up with Johnson on the sidewalk just outside the front entrance to Ernie's Cafe' on Bank Street. At this time, the defendant approached the victim and shot him in the head. Emergency personnel took the victim by ambulance to a nearby hospital, where, after approximately twelve minutes of medical care, he was pronounced dead.

On January 8, 2008, the state filed an information charging the defendant with murder in violation of § 53a–54a (a). On May 28, 2008, attorney Raul Davila was appointed as a special public defender to represent the defendant, which he did for approximately one year without complaint. Beginning on the first day of jury selection on May 28, 2009, the defendant made several requests that the court remove Davila as his counsel and either appoint new counsel or allow him to represent himself. The court denied the defendant's requests to have new counsel appointed, noting that the requests were made on the eve of trial. The trial then proceeded with Davila representing the defendant. After the defendant entered a plea of not guilty and elected to be tried by a jury, jury selection began.

On July 16, 2009, at the conclusion of the state's case-in-chief, the defendant made an oral motion for a judgment of acquittal, asserting that the evidence was insufficient to establish guilt beyond a reasonable doubt, which the court denied. The jury returned a verdict of guilty, and the defendant was sentenced to sixty years incarceration. The defendant, represented by a different special public defender, filed the present appeal on December 1, 2009. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly refused to remove attorney Davila and appoint new counsel, a public defender of his choice. The defendant challenges the actions of the court in this regard on several grounds. First, the defendant argues that the court abused its discretion in refusing to remove his counsel and appoint new counsel. Second, the defendant contends that the court failed to canvass him properly regarding his right to represent himself in violation of his due process right to a fair trial under the sixth amendment to the United States constitution. Third, the defendant alleges that the court improperly denied him counsel of choice in violation of his federal constitutional rights to counsel of his choice. Finally, the defendant claims that the court's refusal to appoint counsel of his choice violated his state and federal constitutional rights to equal protection of the laws. We address each claim in turn.

A

The defendant first claims that the court abused its discretion in refusing to remove his counsel and appoint new counsel.¹ According to the defendant, he demonstrated good cause for the removal of counsel, but the court erroneously ignored his concerns and inappropriately attempted to persuade him as to Davila's ability as a defense attorney. We disagree.

The following additional facts are relevant. By handwritten letter to the court clerk, filed on May 28, 2009, the defendant notified the court that he had discharged Davila and was entering an appearance on his own behalf. In an accompanying “motion to dismiss special public defender and appoint attorney,” the defendant moved the court to remove Davila as his counsel and to appoint new counsel. The defendant stated as grounds for his motion that Davila had failed to communicate effectively with him and that their relationship had become “harmful and adversarial....”

On May 28, 2009, the first day of jury selection, the court considered the defendant's motion and accompanying letter. First, the defendant informed the court that he did not intend to represent himself, despite requesting in his May 28, 2009 letter that his appearance be entered by the court clerk. When the court asked the defendant to explain why he believed that he needed a new attorney, he indicated that he did not feel prepared for the upcoming jury selection, stating, “I don't feel safe with my life in [Davila's] hands.” The court then advised the defendant of the benefits of being represented by an attorney and cautioned him regarding the risks of self-representation.

The defendant refused to withdraw his motion, stating that, “before we even got to this trial, you know, I had a little miscommunicational problems ... I have a feeling inside, Your Honor. I just don't feel safe with him, Your Honor.” The court denied his request for a new attorney, explaining that it was not satisfied with the reasons offered by the defendant, considering that jury selection was to begin that day. The court told the defendant that he had two options remaining: continue being represented by Davila or represent himself. After he indicated that he did not want to represent himself, the court ordered that Davila continue to represent the defendant.

After its ruling, the court allowed Davila to be heard on the record. Davila maintained that he had visited the defendant in prison on at least three occasions to discuss his case and that he had retained a private investigator to assist with the defendant's case. Davila represented to the court that he was “ready, willing, and able” to continue serving as the defendant's attorney. At this point, the proceedings continued, with Davila representing the defendant.

On June 1, 2009, the second day of jury selection, the defendant filed another motion to dismiss attorney Davila. The court noted that the motion raised the same issues as did the first motion, namely, a lack of communication and a breakdown in the attorney-client relationship. The court again explained to the defendant that if he did not want to proceed with Davila, it was not going to appoint a new lawyer, and, therefore, the defendant would have to represent himself. This time, the defendant indicated that he wanted to represent himself. After explaining at length the risks of proceeding without a lawyer and the seriousness of the charges that the defendant faced, the court granted the defendant's motion, appointing Davila as standby counsel.

The defendant objected to the court's ruling, arguing that he had a sixth amendment right to have a different attorney appointed to represent him. The court rejected the defendant's claim and repeated the options of proceeding with Davila or representing himself. The defendant responded: “Well, if that's the case, Your Honor, then I object to everything that's going on, and I refuse to cooperate, Your Honor.” After the defendant indicated that he did not want to represent himself and repeated that he was refusing to cooperate, the court ordered Davila to represent the defendant, unless and until the defendant indicated that he wanted to represent himself.

The defendant renewed his objection to “everything that's going on” on June 4, 2009. He asserted that the court had stated...