State v. Wolff, 12669

• Decision Date: 01 June 1995
• Docket Number: No. 12669,12669
• Citation: 657 A.2d 650,37 Conn.App. 500
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Scott Brian WOLFF.

Page 650

657 A.2d 650

37 Conn.App. 500

STATE of Connecticut v. Scott Brian WOLFF.

No. 12669.

Appellate Court of Connecticut.

Argued Jan. 11, 1995.

Decided April 11, 1995.

Certification Granted Limited to the Following Issue June 1, 1995.

Suzanne Zitser, Asst. Public Defender, for appellant (defendant).

David J. Sheldon, Deputy Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and William Bumpus, former Asst. State's Atty., for appellee (State).

Before LAVERY, HEIMAN and SCHALLER, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1), ¹ and one count of breach of the peace in violation of General Statutes § 53a-181(a)(5). ² The defendant claims that the trial court improperly (1) permitted the defendant to represent himself without a determination that he was competent, (2) permitted him to proceed without an adequate waiver of counsel, (3) determined that sufficient evidence was introduced at trial from which a rational trier of fact could find the defendant guilty of breach of the peace, and (4) instructed the jury on the intent element of breach of the peace. We agree with the defendant as to the second claim. We also conclude, however, that the evidence was sufficient to support the breach of the peace charge.

The jury reasonably could have found the following facts. On May 26, 1992, at approximately 5 p.m., a Hartford police officer, who was patrolling in the downtown area of Hartford near the train station, stopped an individual who fit the description of a robbery suspect. Another officer arrived at the scene to assist shortly thereafter. While the two police officers were investigating the suspect, the officers' attention was drawn to the defendant who was standing at the top of the stairs of the train station yelling obscenities at them. When the officers approached the defendant and attempted to calm him down, he began swinging his arms and fists at the officers, and hit one of them in the chest. In the ensuing struggle, the defendant and the two officers fell down the three steps of the top landing at the station. The struggle continued, but the officers were finally able to subdue and arrest the defendant. Both officers were treated at a hospital for their injuries.

At the time of his arrest, the defendant had outstanding criminal charges involving two separate incidents, one on December 20, 1991, and the other on May 26, 1992. In addition, the defendant had an appeal pending in this court. ³

During the pretrial proceedings, the defendant continually rejected the appointment of a public defender and insisted that he wanted to proceed pro se. At a pretrial hearing on July 7, 1992, the court, over the defendant's objection, appointed a public defender to assist him. The court assured the defendant that he could reject the public defender's services, but that he would be appointed notwithstanding.

At a subsequent pretrial hearing, the defendant demonstrated his reluctance to utilize the services of the public defender who had been appointed for him by the court. When the court asked the defendant why he did not want the public defender's assistance, the defendant said, "Because I can present the case better that he can." When the court asked the defendant if he knew anything about the rules of evidence, the defendant said, "Yeah." When the court asked the defendant where he received his training, the defendant replied, "The street." The court informed the defendant that the public defender would remain as standby counsel and that he would assist him if he had any questions. The defendant pleaded not guilty and elected a jury trial.

The defendant proceeded pro se at every step of the trial process. In a pretrial proceeding in which the court suggested to the defendant that if an attorney was handling this case the attorney would make a motion to sever and ask that the two cases not be tried together because one could prejudice the other, the defendant replied, "It makes no difference to me, whatever the state decides as far as that goes." During jury selection, the defendant demonstrated a lack of understanding of proper voir dire questioning and the need for selecting unbiased jurors. Furthermore, during the trial, the defendant interjected prejudicial testimony regarding two uncharged incidents, called and questioned adverse witnesses, and presented a conspiracy defense theory without any evidence to support it. After the defendant was found guilty by a jury in December, 1992, the court ordered the defendant to be committed for psychiatric evaluation and treatment pursuant to General Statutes § 17a-566.

The dispositive issue is whether the trial court properly determined that the defendant waived his right to counsel. ⁴ A criminal defendant is guaranteed the right to assistance of counsel by the sixth and fourteenth amendments to the constitution of the United States; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and by our state constitution. State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I ); State v. Varricchio, 10 Conn.App. 265, 267, 522 A.2d 843 (1987). A criminal defendant also has the right to appear pro se in a state criminal trial if he voluntarily and intelligently decides to do so. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); see also State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II ); Gethers I, supra, 533, 480 A.2d 435. "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' forego those relinquished benefits." Faretta v. California, supra, at 835, 95 S.Ct. at 2541.

When faced with a defendant who is deciding to appear pro se, and who wishes to waive his right to counsel, it is vital that the trial court satisfy itself that the defendant is fully aware of the risks involved and makes the choice knowingly. Gethers II, supra, 197 Conn. at 380-81, 497 A.2d 408. Our role as a reviewing court is to determine whether the defendant effectively waived his right to counsel. State v. Varricchio, supra, 10 Conn.App. at 269, 522 A.2d 843.

The defendant claims that the trial court failed to comply with the provisions of Practice Book § 961. ⁵ Although the defendant did not properly preserve this claim of error for appeal, noncompliance with a mandatory rule of practice constitutes plain error. ⁶ See State v. Quintana, 209 Conn. 34, 40, 547 A.2d 534 (1988); State v. Thurman, 10 Conn.App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987); see also Practice Book § 4185. The defendant's claim, therefore, is reviewable by this court under the plain error doctrine. ⁷

We conclude that the trial court failed to comply adequately with Practice Book § 961(3), and therefore limit our discussion to the defendant's argument on that section. The defendant asserts that he was not informed of the nature of the charges that he faced. Section 961(3) requires that the court be satisfied that the defendant "[c]omprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case...." In an attempt to comply with § 961(3), the court did advise the defendant of the penalties that he faced in light of the state's charges, but it did not advise him of the elements of those crimes so as to inform him adequately of the nature of the charges against him.

The state argues that the trial court is entitled to presume that defense counsel has explained the nature of this offense in sufficient detail. State v. Blackwell, 9 Conn.App. 587, 597, 520 A.2d 634, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987), citing Gethers I, supra, 193 Conn. at 537, 480 A.2d 435. In this case, however, the record clearly indicates that the defendant proceeded without the assistance of counsel from the inception of his court appearances. We cannot presume, therefore, that the defendant's attorney had explained the nature of the offenses to the defendant. State v. Smith, 18 Conn.App. 368, 375, 558 A.2d 257 (1989).

For the foregoing reasons, we conclude "that the trial court failed to comply substantially with Practice Book § 961(3). Because § 961 protects a defendant's right to the assistance of counsel, as well as his corollary right to self-representation; Gethers I, supra, [193 Conn.] 534 ; substantial defective compliance with the rule requires reversal 'even if no particular prejudice is shown and even if there is overwhelming evidence of guilt.' State v. Varricchio, supra, [10 Conn.App.] 270 ." State v. Smith, supra, 18 Conn.App. at 377, 558 A.2d 257.

"Even though our resolution of this case on the issue of [adequate waiver of counsel] would appear dispositive because the other issues are unlikely to arise in a retrial, we must address the sufficiency of the evidence claim since the defendant would be entitled to an acquittal of the charge on which he claims insufficient evidence if he prevails on this claim. State v. Dunn, 26 Conn.App. 114, 123, 598 A.2d 658 (1991)." State v. Wolff, 29 Conn.App. 524, 527 n. 4, 616 A.2d 1143 (1992). The defendant maintains that the state failed to present sufficient evidence to support his conviction for breach of the peace. Specifically, the defendant argues that the state failed to prove that he possessed the requisite intent to violate General Statutes § 53a-181(a), and that the jury could not reasonably have found that his words constituted "abusive language" under the statute. We disagree.

"When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a...