State v. Blake

958 A.2d 1236

289 Conn. 586

STATE of Connecticut v. Sadiki BLAKE.

No. 18185.

Supreme Court of Connecticut.

Argued October 14, 2008.

Decided November 25, 2008.

Mary Beattie Schairer, special public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and KATZ, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

KATZ, J.

The defendant, Sadiki Blake, appealed to the Appellate Court from the judgments of the trial court revoking his probation pursuant to General Statutes § 53a-32 following his arrest on charges of attempt to commit murder, assault in the first degree, burglary in the first degree and criminal possession of a firearm.¹ The defendant raised, inter alia, various claims regarding the trial court's alleged violation of his right to allocution² when it denied his request for a continuance of the dispositional phase of the violation of probation hearing to wait for a final resolution of the underlying criminal charges.³ State v. Blake, 108 Conn.App. 336, 345, 947 A.2d 998 (2008). Specifically, the defendant claimed that: (1) certain "logistical benefits" could have been available to him at that hearing depending on how the charges were resolved; and (2) the trial court had denied him meaningful allocution because any incriminating statements made by him expressing remorse or responsibility for the criminal acts that formed the basis for the violation of probation charges could have been used against him at his trial on the assault and burglary charges. Id., at 349, 947 A.2d 998. The Appellate Court, in a two to one majority opinion, did not reach the merits of the defendant's logistical benefits claim, concluding that, because he had not raised that claim before the trial court, it was not reviewable. Id., at 350, 947 A.2d 998. With respect to the defendant's other claim, the Appellate Court majority held that, in light of the fact that the state, in response to a request by the defendant's attorney, had agreed that it would not use any incriminating statements made by the defendant during trial on the criminal charges and the fact that the defendant's attorney did not address the matter further, the trial court timely had addressed this issue and resolved it in a manner consistent with the wishes of the defendant, who could not how claim that such resolution was prejudicial to him. Id., at 350-52, 947 A.2d 998.

In this certified appeal,⁴ the defendant claims that the Appellate Court should have considered and agreed with his claim that the trial court improperly had refused to defer his sentencing on the violation of probation matter until after the disposition of his underlying criminal charges, and that the trial court's failure to grant him a continuance at the dispositional phase of his probation hearing eviscerated his right of allocution. He contends that, because the trial court would not grant his request for a continuance, his right to allocution was not meaningful. Although the defendant raises some interesting academic considerations, we conclude that his right to allocution was protected in this case and that he waived any ancillary concerns. Accordingly, we agree with the Appellate Court majority's decision.

The Appellate Court opinion set forth the following relevant facts and procedural history. "In August, 2001, the defendant was convicted on separate informations of two counts of sale of narcotics. The court imposed a total effective sentence of four years imprisonment, execution suspended, and four years of probation. In December, 2004, while the defendant was on probation, he was arrested on charges of attempt to commit murder, assault in the first degree, burglary in the first degree and criminal possession of a firearm. As a result of these charges, the defendant also was charged, in two informations, with violating the terms of his probation. The state later withdrew the charge of attempt to commit murder and, during the criminal trial, the court granted the defendant's motion for a judgment of acquittal with regard to criminal possession of a firearm. The court declared a mistrial as to the assault and burglary counts after the jury was unable to return a unanimous verdict with regard to those counts. The court subsequently held a hearing related to the violation of probation charges.

"On the basis of evidence presented during the trial and at the hearing, the court revoked the defendant's probation and committed him to the custody of the commissioner of correction for four years. In its oral ruling, the [trial] court found that the state had presented reliable and probative evidence and had proven by a preponderance of the evidence that the defendant had violated his probation by committing the crimes of assault in the first degree and burglary in the first degree. Later, after a new trial, the jury found the defendant not guilty of those crimes." Id., at 338-39, 947 A.2d 998.

In connection with the defendant's claim that the trial court had violated his right to allocution when it denied his request for a continuance of the dispositional phase of the violation of probation hearing, the Appellate Court majority opinion set forth the following additional facts and procedural history. "On March 22, 2006, immediately after the conclusion of the adjudicative phase of the hearing, the court took up the issue of the proper disposition of the violation of probation charges. The defendant's attorney informed the court that he `need[ed] time to prepare an argument for sentencing.' The court granted a continuance until the following morning. The next day, the defendant's attorney addressed the court as follows: `I would like to formally object to proceeding with sentencing on the violation of probation. . . . As the court is aware, [the defendant], at this stage, in a violation of probation proceeding, has a right of allocution. . . . [T]he criminal charges upon which the violation is based have not been disposed of yet because of a mistrial. He also has an operative right against self-incrimination. To proceed, at this point, would cause or have the effect on [the defendant] of having to elect between those two rights. Frankly, with what is at stake in the two cases, that would, at least by my advice, cause him to waive his right of allocution. But I don't think he should be placed in that position and I, therefore, request that the court, again, consider not proceeding at this time and wait until the criminal charges are, in some manner, disposed of.'

"The court asked the defendant's attorney to elaborate with regard to his request. The defendant's attorney explained his concern that if, during allocution, the defendant wanted to express some remorse or responsibility for the criminal acts that formed the basis of the violation of probation charges, such statements could be viewed as incriminatory and be used against him during any new trial related to those charges. The court asked the defendant's attorney: `Well, how about if the court orders that whatever [the defendant] says can't be used against him at the trial?' The defendant's attorney responded that he would not feel comfortable advising his client to proceed on that basis `unless the prosecution joins in that.'

"The court responded: `The court does not feel that [the defendant] cannot speak because of the fact that the case is pending against him. There are many things he can say. And, certainly, if his position is that, I didn't do it, then that's something he should say if he wants to. There are a lot of things he can say without incriminating himself. So, if he doesn't want to speak on his own behalf, that's his right. He has the opportunity to do so.' The defendant's attorney responded that the issue was not whether the defendant had an opportunity to address the court, but whether he was `free to fully exercise the right.' After the colloquy between the defendant's attorney and the court concluded, the prosecutor stated: `If [the defendant] wants to show remorse by admitting his culpability on the underlying charges, I'll state on the record that I won't use that admission against him at the retrial of the criminal charges.'

"The defendant's attorney conversed briefly with the defendant, then stated: `[The defendant] has concerns now with the manner in which I'm handling his case. His concerns are that his probation officer should be here to speak to how he was otherwise doing on probation prior to the violation being lodged against him. And he is concerned by the court's [finding] in terms of there being a violation of probation, particularly with regard to the findings about him being in possession of a . . . gun, in light of the court's earlier granting of the motion [for a] judgment of acquittal [on the possession of a firearm charge]. It's his concern that that demonstrates some bias on the part of the court in terms of further hearing the matter.'

"The court addressed the defendant. The court stated that, because the violation of probation was based on his substantive offenses, testimony from the defendant's probation officer concerning other matters would be irrelevant. The court informed the defendant that it was its role to make factual findings concerning his conduct and that he had a right to appeal from the court's decision. Finally, the court stated that the defendant's attorney `[had] done an excellent job' and that `he is certainly capable of proceeding' in this matter.

"The following colloquy between the defendant and the court then occurred:

"`[The Defendant]: I would like to address the court.

"`The Court: All right. You should understand that anything you say can be used against you.

"`[The Defendant]: Yeah, I understand that. First of all, I need a continuance for ample time to find better...