State v. Auburn W.

198 Conn.App. 558

233 A.3d 1267

STATE of Connecticut

v.AUBURN W.^*

AC 42126

Appellate Court of Connecticut.

Argued March 5, 2020

Officially released June 30, 2020

Daniel J. Krisch, Hartford, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Dawn Gallo, state's attorney, and Gregory L. Borrelli, assistant state's attorney, for the appellee (state).

Alvord, Elgo and Devlin, Js.

ALVORD, J.

The defendant, Auburn W., appeals from the judgments of conviction, rendered following a jury trial, of three counts of harassment in the second degree in violation of General Statutes § 53a-183 (a) (2), one count of harassment in the second degree in violation of § 53a-183 (a) (3), and one count of stalking in the second degree in violation of General Statutes (Rev. to 2015) § 53a-181d (b) (1).¹ On appeal, the defendant claims that the trial court improperly held that he forfeited his right to self-representation on the basis of a

lack of competence. We disagree and, thus, affirm the judgments of the trial court.

The following facts and procedural history are relevant to this appeal and are set forth in detail, a reflection of the defendant's presumptive constitutional right to represent himself. See Faretta v. California , 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The charges against the defendant stem from his unsolicited telephone calls, text messages, and e-mail communications to the three victims, C, F, and Attorney W. The defendant was charged as a result of his conduct related to C, F, and W in May, 2015, January, 2016, and September, 2016, respectively.

There were extensive pretrial proceedings in these joined cases, the most relevant of which began on November 28, 2017, when the court, Dooley, J ., held a hearing on the defendant's motion to replace his assigned defense counsel, Attorneys Christopher Y. Duby and Robert L. O'Brien. The defendant alleged misconduct against Duby and O'Brien, stated that he would be filing a police report, was seeking their prosecution, and would file a grievance against them. The defendant further claimed that Duby and O'Brien breached ethical duties to him, were providing inadequate assistance of counsel, and had conflicts of interest, including that they did not "want to expose what's gone on in this ... courthouse ... because they will lose business."

Judge Dooley denied the defendant's motion to replace his assigned defense counsel. The defendant, both before and after Judge Dooley's ruling, declared three times that he would represent himself. Judge Dooley warned the defendant that a decision to represent himself was "an incredibly bad idea" and stated that "refusing counsel is ... not an option. If you'd like to make a motion that you be permitted to represent

yourself, I can undertake that motion ...." Undeterred by Judge Dooley's warning, the defendant orally moved to represent himself. In response to the defendant's motion, Judge Dooley ordered a five minute recess so that the defendant could "talk to [Duby and O'Brien] about the question of self-representation."

When the court reconvened, O'Brien reported that he had advised the defendant of his constitutional right to an attorney and that, should he waive that right, he would be "expected to follow all the rules and procedures of the court." According to O'Brien, the defendant told him "that he didn't understand" but, nonetheless, O'Brien "believe[d] that [the defendant was] aware of what his obligations would be" if he represented himself. O'Brien further stated that there was no further conversation between them because of "the attitude" O'Brien received from the defendant. The defendant told Judge Dooley that he did not understand why O'Brien was asking him if he understood his constitutional right to an attorney. Judge Dooley responded that she thought that it was prudent for him to speak with his defense counsel before deciding whether to represent himself without the assistance of counsel. Judge Dooley again ordered a recess so that the defendant would have that opportunity. Prior to the second ordered recess, however, the defendant again raised a concern about whether Duby and O'Brien could adequately represent him, to which Judge Dooley told the defendant that the issue had "already been resolved by my ruling ...."

When the hearing resumed after the second recess, O'Brien reported to the court his impression that the defendant was "aware of what's going on," and was "aware of his obligations, the procedure into the court and ... decorum." The defendant stated, "[t]hat's exactly what I said I'm not aware of," and then attempted once again to revisit the topic of whether O'Brien should continue to represent him. At this time,

the prosecutor moved for a hearing, pursuant to General Statutes § 54-56d, to evaluate the defendant's competency under Indiana v. Edwards , 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008), and State v. Connor , 292 Conn. 483, 973 A.2d 627 (2009) ( Connor I ).

During a lengthy colloquy, Judge Dooley explained to the defendant what representing himself would entail and attempted to elicit a direct answer from him as to whether he was requesting to represent himself. The defendant provided equivocal answers to Judge Dooley's direct question, interrupted her and others numerous times, and raised immaterial issues. The defendant returned to his motion to substitute his assigned defense counsel, stated his intention to immediately appeal Judge Dooley's denial of that motion, and requested a change of venue because "[W] is well known by everyone in here." Judge Dooley warned the defendant multiple times to cease his interruptions or else she would remove him from the courtroom or "decide, based on the record developed here today, that you're not competent to represent yourself. ... Because this is not a circus; this is not the Jerry Springer [television] show; this is not the big top. You're going to have jurors in here, and you will comport yourself with what we expect litigants and their lawyers and how they're to ... behave. And what you're demonstrating to me is that you're not capable of that, and under those circumstances I would not let you represent yourself." Eventually, the defendant did unequivocally request to represent himself.

The state reiterated its request that the defendant's competency to represent himself be evaluated. After noting her "significant concern ... as to [the defendant's] ability to comport himself as required in a courtroom ... [and] his ability to appropriately stay focused on the issues associated with jury selection and ... the cross-examination or direct examination

of witnesses," Judge Dooley ordered that the defendant's competency to represent himself be evaluated by the Department of Mental Health and Addiction Services (department). The defendant informed Judge Dooley what his "intent" was with respect to the evaluation: "I can make, I'm looney, I can go in there, make them think, sane. I can do whatever I wish." The defendant further stated, "I would like to apologize for my conduct; it has gone exactly as I hoped it would today."

Subsequently, Judge Dooley sua sponte raised the issue of the defendant's pretrial bond, indicating her intention to release the defendant from prison on a promise to appear that was accompanied by certain conditions. During the bond discussion, the defendant interjected frequently, informing Judge Dooley that he did "not want a reduction of bond." Judge Dooley warned the defendant five times to stop interrupting her and others before ordering him removed from the courtroom.

When the defendant eventually was permitted to return to the courtroom, he immediately stated his intention to file a grievance against the prosecutor and was told by Judge Dooley to stop interrupting. Soon thereafter, the defendant asked if he could withdraw his request to represent himself, to which Judge Dooley asked, "[d]o you realize that if you withdraw that request, then you can never reassert it?" The defendant then informed Judge Dooley that he did not know if he wanted to withdraw his request to represent himself. When Judge Dooley pressed for an unambiguous answer, the defendant instead sought to address prior comments made by the prosecutor. Judge Dooley redirected the discussion back to the issue of the defendant's pretrial bond without first getting a definitive answer from him as to the status of his request to represent himself.

Prior to and while Judge Dooley was issuing her ruling on his bond, the defendant interjected, "why are you trying to lower my bond? This doesn't make sense to me," "[w]atch this," "[h]ave you ever seen Star Trek, The Wrath of Khan?" and, "[h]ere it comes." When the prosecutor raised an issue concerning a protective order, the defendant again began interrupting the proceedings, including by stating that he would not recognize the protective order's restriction against contacting his three children. The defendant was warned three times by Judge Dooley to stop talking and then was ordered removed from the courtroom for the second time during that hearing. Judge Dooley stated, "I think what we've seen here today is gamesmanship, manipulation, deceit on many, many levels and ... at this juncture, the court is going to get its evaluation ...." Judge Dooley then asked Duby and O'Brien to collect contact information from the defendant during the court's luncheon recess for his competency evaluation.

After the court reconvened, the defendant was permitted to return to the courtroom. The prosecutor stated to the court that, in the holding cell, the defendant "refus[ed] to leave and shout[ed] various statements, basically to the effect that he was going to violate the protective orders as soon as he exited the court." The bail commissioner reported that her attempts to speak with the defendant and have him sign a written promise to appear...