State v. Bush

179 Conn.App. 108

178 A.3d 392

STATE of Connecticut

v.Richard BUSH

AC 34886

Appellate Court of Connecticut.

Argued September 18, 2017

Officially released January 9, 2018

Pamela S. Nagy, assistant public defender, for the appellant (defendant).

Adam E. Mattei, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and C. Robert Satti, supervisory assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Sheldon and Mullins, Js.

SHELDON, J.

This case is before us on remand from our Supreme Court following its affirmance of our determination that insufficient evidence was presented at trial to sustain the conviction of the defendant, Richard Bush, for racketeering in violation of General Statutes § 53–393 et seq. The Supreme Court disagreed, however, with this court's determination that the defendant was entitled to a new trial on the other charges of which he had been found guilty—six counts each of sale of narcotics and sale of narcotics within 1500 feet of a school, and one count of conspiracy to sell narcotics—because the trial court's denial of his motion for a continuance to review voluminous discovery documents after granting his second request to represent himself had effectively deprived him of his constitutional right to self-representation. Before us now are the defendant's additional claims of error as to his remaining convictions. The defendant claims that the trial court: (1) violated his constitutional right to self-representation by not granting his initial request to represent himself on the second day of voir dire; (2) improperly instructed the jury on the charge of conspiracy; and (3) improperly sentenced him to a term of twenty years incarceration on his conviction for conspiracy. We reject the defendant's first two claims of error, and thus conclude that he is not entitled to a new trial. We agree with the defendant, however, that he was improperly sentenced to a term of twenty years incarceration on his conviction for conspiracy. Accordingly, we remand this case for resentencing on that conviction.

The Supreme Court recounted the following relevant factual and procedural background, as previously set forth by this court. "The charges upon which the defendant was brought to trial were based upon his alleged involvement in seven separate sales of cocaine to a police informant, David Hannon, during an undercover police investigation of illegal drug activity in the area of Pembroke and Ogden Streets in Bridgeport between late June [and] early November, 2010.... [D]uring that time period, the investigating task force of officers from the Bridgeport Police Department and the Connecticut State Police obtained extensive audiotape and videotape surveillance footage of these sales, in which the defendant, working from the porch of his duplex home, which directly abutted the sidewalk on Pembroke Street, sold cocaine to Hannon, or facilitated sales to Hannon by six other drug dealers, namely, David Moreland, Jason Ortiz, Willie Brazil, Raymond Mathis, Carlos Lopez, and Kenneth Jamison.

"In an amended long form information dated January 3, 2012, the state charged the defendant, more particularly, with: one count each of sale of narcotics by a person who is not drug-dependent and sale of narcotics within 1500 feet of a school by a person who is not drug-dependent in connection with six of the seven alleged sales; and one count each of conspiracy to sell narcotics and racketeering based upon his alleged involvement in all seven such alleged sales, as specially pleaded both in the conspiracy count, as overt acts in furtherance of the alleged conspiracy, and in the racketeering count, as incidents of racketeering activity claimed to prove his involvement in a pattern of racketeering activity, as required by [General Statutes] § 53–396 (a). The jury found the defendant guilty of the lesser included offenses of sale of narcotics by a person who is drug-dependent and sale of narcotics within 1500 feet of a school by a person who is drug-dependent based upon his proven involvement in sales of cocaine to Hannon on the six dates he was charged in the information with committing such offenses, particularly June 30, July 14, July 16, August 6, August 24, and November 9, 2010. The jury also found the defendant guilty of both conspiracy to sell narcotics and racketeering, specifying as to the latter charge, in a special verdict returned pursuant to § 53–396 (b), that the sole basis for its finding that the defendant had engaged in a pattern of racketeering activity as a member of an enterprise was his involvement in the sale of cocaine on two of the seven dates specified in the information, June 30 and November 9, 2010, which it found to have constituted incidents of racketeering activity. The trial court later sentenced the defendant on all charges of which he was convicted to a total effective sentence of twenty years incarceration." (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Bush , 325 Conn. 272, 277–78, 157 A.3d 586 (2017). Specifically, the defendant was sentenced to: twenty years incarceration on his conviction for conspiracy in violation of General Statutes §§ 53a–48 and 21a–278 (b) ; fifteen years incarceration on each of his six convictions for sale of narcotics by a drug-dependent person in violation of General Statutes § 21a–277 (a), to run concurrently with his sentence for conspiracy; and three years incarceration on each of his six convictions for sale of narcotics by a drug-dependent person within 1500 feet of a school in violation of General Statutes § 21a–278a (b), to run concurrently with one another and with his sentence for conspiracy, but consecutively to his concurrent sentences for sale of narcotics.

The defendant appealed from his conviction to this court. This court, as previously noted, reversed his racketeering conviction and directed that a judgment of acquittal be entered on that charge. This court further determined that he was entitled to a new trial on the other charges of which he had been convicted because he had effectively been denied his right to represent himself when the trial court, after granting his request to represent himself, denied his motion for a continuance to review voluminous discovery documents before the start of trial. State v. Bush , 156 Conn. App. 256, 112 A.3d 834 (2015), rev'd, 325 Conn. 272, 157 A.3d 586 (2017). Our Supreme Court affirmed the reversal of the defendant's racketeering conviction, but disagreed with this court's conclusion that the defendant was entitled to a new trial on the remaining charges because the trial court violated his constitutional right to self-representation when it denied his request for a continuance to examine the state's disclosure on the eve of trial. We now address his remaining claims on appeal. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court violated his constitutional right to represent himself at trial by denying his initial request to do so. Although the court ultimately granted the defendant's second request to represent himself, and the defendant subsequently withdrew that request and elected to proceed with his attorney's representation after his motion for a continuance was denied, he claims that the court committed structural error by denying his initial request to represent himself. We disagree.

The following additional procedural history is relevant to this claim. "On the first day of voir dire, March 12, 2012, the defendant told the court that he and [his court-appointed counsel, Vicki Hutchinson] ‘don't connect at all,’ and that he was ‘very uncomfortable’ with her. In response, the court told the defendant: ‘Sir, this case is over a year old ... approximately a year old, you were arrested about a year ago, around July. You were brought to this courthouse in July of [2011], you plead[ed] not guilty, and ... Hutchinson has represented you since then. This is ... and we're ready to start picking the jury, and this is the first request, [a] request to have someone other than ... Hutchinson represent yourself.... Hutchinson is an extremely well experienced defense attorney, we're going forward with the trial at this time.’

"The next day, March 13, 2012, the defendant again voiced his dissatisfaction with Hutchinson's representation. The defendant also complained that he had not had the opportunity to review with his attorney various documents and videotapes she had procured through discovery. In response, the court reiterated that the defendant's trial had already begun and that Hutchinson was a very experienced attorney. The court explained that the trial would proceed with jury selection that morning, but that the defendant would be given the afternoon to meet with Hutchinson. At that point, the state suggested that the court may have an obligation, pursuant to State v. Flanagan , 293 Conn. 406, 978 A.2d 64 (2009), to canvass the defendant as to his request to represent himself. The court responded, ‘[w]e're not at that point yet.’ Voir dire resumed.

"Shortly thereafter, when the defendant interrupted the voir dire proceedings, the court asked him if he wanted to represent himself. When the defendant responded in the affirmative, the court canvassed him both to determine if he had the desire and the capacity to represent himself, and to warn him of the dangers and disadvantages of self-representation. After asking the defendant several questions on these subjects, the court proposed to the defendant that he agree to have Hutchinson pick the jury, and then it would revisit the issue of whether he should be allowed to represent himself going forward. The defendant initially agreed to that proposal. Voir dire thus continued until 1:15 p.m., with Hutchinson still representing the defendant. Thereafter, as promised, the defendant was afforded the rest of the day to meet with Hutchinson to...