State v. Wolff

• Decision Date: 09 July 1996
• Docket Number: No. 15279,15279
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Scott Brian WOLFF.

Page 1369

678 A.2d 1369

237 Conn. 633

STATE of Connecticut v. Scott Brian WOLFF.

No. 15279.

Supreme Court of Connecticut.

Argued Feb. 15, 1996.

Decided July 9, 1996.

Paul J. Ferencek, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and David J. Sheldon and William Bumpus, former Assistant State's Attorneys, for appellant (State).

Suzanne Zitser, Assistant Public Defender, for appellee (defendant).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and PALMER, JJ.

BORDEN, Associate Justice.

The principal issue in this certified appeal is whether the Appellate Court properly concluded that the defendant was entitled to a new trial because the trial court had failed to comply adequately with Practice Book § 961(3) ¹ and, accordingly, that the defendant's waiver of counsel was invalid. The defendant, Scott Brian Wolff, was convicted after a jury trial of two counts of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1), ² and one count of breach of the peace in violation of General Statutes § 53a-181(a)(5). ³ He appealed from the judgment of conviction to the Appellate Court, which reversed the judgment of the trial court and remanded the case for a new trial. State v. Wolff, 37 Conn.App. 500, 657 A.2d 650 (1995). We granted the state's petition for certification to appeal, limited to the question of whether the Appellate Court correctly concluded that the trial court had failed to conduct an adequate canvass before permitting the defendant to proceed to trial without counsel. ⁴ Thereafter, the defendant presented for review, pursuant to Practice Book § 4140, ⁵ the following alternate grounds for affirming the judgment of the Appellate Court: (1) the trial court improperly permitted the defendant to represent himself without ordering, sua sponte, an examination to determine whether he was competent to do so; and (2) the trial court improperly instructed the jury regarding the element of intent required for conviction of the breach of the peace charge. We reverse the judgment of the Appellate Court with respect to the validity of the defendant's waiver, and affirm its judgment with respect to the jury instruction regarding the breach of the peace charge.

The jury could reasonably have found the following facts. On May 26, 1992, while Hartford police officer Stephen Miele was on foot patrol near the train station in downtown Hartford, he stopped an individual who fit the description of a robbery suspect being sought by the police. Because the suspect was uncooperative, Miele requested assistance and was soon joined by police officer Laura Buyak. While Miele was in the process of arresting the robbery suspect, his attention was diverted to the defendant, who was standing at the top of the train station stairway shouting something approximating the following: "Fuck you, you motherfucking cops. You're all cocksuckers. You're all out to get me." The defendant was also screaming such things as "[f]ucking cops," causing other people to stop and see what was occurring. Dennis Connolly, who was working in a store across the street from the train station, heard a commotion outside and, when he went to investigate, saw the defendant standing at the top of the stairs, shouting at Miele and Buyak, using the language previously described. Connolly was annoyed and alarmed by the defendant's language.

After placing the robbery suspect in Buyak's patrol car, Miele and Buyak approached the defendant and attempted to calm him down. Because Miele thought that the defendant might have been a friend of the man arrested, he approached the defendant in order to explain why the other man had been arrested. As Miele was trying to speak to the defendant and calm him down, the defendant swung at Miele, striking him in the chest. When Buyak attempted to assist Miele, the defendant became even more agitated and began swinging his arms and fists at both officers, who tried to defend themselves and to restrain the defendant. During the ensuing struggle, the defendant and the two officers fell down several steps of the stairway, resulting in loss of consciousness to Buyak, and an injury to Miele's foot. When Buyak regained consciousness, the defendant was on the ground, still struggling with Miele. Buyak then picked up Miele's baton and struck the defendant in the legs until he was sufficiently subdued to permit the officers to handcuff him. The defendant was then taken to the police station in a patrol wagon, and both officers were treated at a hospital for their injuries.

At the defendant's arraignment on May 27, 1992, the court, Pellegrino, J., proposed to appoint the public defender to represent the defendant. The defendant informed the court, however, that he intended to represent himself. At his next two pretrial appearances, on June 10, 1992, ⁶ and June 24, 1992, before Pellegrino, J., and Kocay, J., respectively, the defendant appeared without counsel and reiterated his desire to proceed pro se. At the defendant's next appearance, on July 7, 1992, the court, Kocay, J., informed the defendant that, despite the defendant's objections, it was going to appoint the public defender to represent him. Judge Kocay told the defendant: "[i]f you don't want the public defender then he can sit behind you when the case comes up. But I'm going to continue this so they can discuss it with you to determine if a public defender is appropriate.... At this stage I'm going to appoint the public defender to assist you. You can refuse his services if you wish but he's going to be appointed notwithstanding." (Emphasis added.) Although the defendant had initially objected to the appointment of the public defender stating, "No, that's my choice," by the end of the July 7 hearing he had learned that the public defender might be able to help him get access to his supplemental security income (SSI) checks, at which point he inquired when he would be able to talk to the public defender.

On July 21, 1992, assistant public defender Ross Delaney appeared before Judge Kocay on behalf of the defendant and requested a continuance to confer with the defendant, which the court permitted. The following day, Delaney again appeared for the defendant and argued a motion for bond reduction before Judge Kocay. When asked if he was the defendant's attorney of record, Delaney responded that he was. Delaney also stated, however, that he was acting as standby counsel. During the bond reduction hearing, the state recounted the facts of the case, maintaining that the defendant had been screaming and swearing at police officers, and then had engaged in a fight with them. Delaney then said that he had discussed the case with the defendant, who had presented a different version of the incident. ⁷

At the next pretrial hearing, on September 15, 1992, Delaney again appeared for the defendant and addressed the court, O'Keefe, J., on the defendant's behalf. The defendant renewed his objection to being represented by Delaney, insisting that he had been pro se all along, but also stating that when Judge Kocay had appointed Delaney, he had "[gone] along with it." The court then allowed the defendant individually to present argument about his bond. ⁸

At the defendant's next appearance, on November 18, 1992, the court, Espinosa, J., informed the defendant that his case was ready for trial and asked the defendant if he had counsel. After the defendant told Judge Espinosa that he intended to represent himself, she questioned him in order to determine whether to accept his waiver of counsel. ⁹ Thereafter, the trial court told the defendant that he would be permitted to represent himself at trial, with Delaney acting as standby counsel.

After a recess, the trial court reconvened. Upon reconvening, further colloquies and proceedings took place among the trial court, the state, the defendant and his standby counsel. The court explained the process of jury voir dire to the defendant, and he indicated that he understood the court's explanation. The court then explained that it would be in the defendant's interest to have the two sets of charges severed so as to avoid undue prejudice to him. See footnotes 7 and 10. In this connection, Delaney also indicated that he had advised the defendant of the "legal ramifications" of having the cases tried separately or together, and that "it was [the defendant's] decision to state whatever he [wanted]." When the state objected to a severance, the state, at the court's request, described the facts of the two sets of charges, and the defendant elected to have them tried together. ¹⁰ The court then explained to the defendant that the state proposed to file a substitute information that would change the charge in the December 20, 1991 incident from a misdemeanor to a felony, that the charge of "assault on a peace officer" is a class C felony carrying a minimum mandatory sentence of one year, and a maximum sentence of ten years and a $5000 fine, and that the charge of "[b]reach of the peace" carries a maximum penalty of six months and a $1000 fine. The court further explained that, because of the defendant's decision to have the cases tried together, the state must file a substitute information, and stated that, "So if that's what you want to do you'll understand the consequences of that then I will recess and give the state an opportunity to [file a substitute information] because what's going to happen is you have to plead again. You have to plead not guilty to the new charges, and ask for a jury trial." Before the court recessed, however, the defendant requested copies of the police reports on the two cases. Delaney indicated that he had those copies, and would give them to the defendant.

After the luncheon recess, the state handed copies of its two long form substitute informations to the defendant, and the defendant was put to plea on the charges involved in this...