State v. Flanagan

978 A.2d 64

293 Conn. 406

STATE of Connecticut v. Maurice FLANAGAN.

No. 17990.

Supreme Court of Connecticut.

Argued May 27, 2009.

Decided September 15, 2009.

Richard W. Callahan, special public defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy' state's attorney, Herbert E. Carlson, Jr., supervisory assistant state's attorney, and Kevin Murphy, senior assistant state's attorney, for the appellee (state).

NORCOTT, KATZ, PALMER, ZARELLA and PITTMAN, Js.

NORCOTT, J.

The defendant, Maurice Flanagan, appeals, following our grant of his petition for certification,¹ from the judgment of the Appellate Court affirming the trial court's judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-48(a). State v. Flanagan, 102 Conn.App. 105, 106-107, 925 A.2d 385 (2007) (en banc) (Flanagan II). On appeal, the defendant claims: (1) that the Appellate Court improperly concluded that he had not clearly and unequivocally invoked his right to self-representation under the sixth amendment² to the United States constitution;³ and (2) in response to an alternate ground for affirmance proffered by the state, that the trial court improperly applied an "exceptional circumstances" test in ruling on the timeliness of his request to represent himself. We agree with both of the defendant's claims and, accordingly, we reverse the judgment of the Appellate Court.

The record and the Appellate Court decision reveal the following relevant facts and procedural history. In connection with a gang related drive-by shooting in New Britain in 1994, the state charged the defendant with two counts of murder in violation of General Statutes §§ 53a-54a(a) and 53a-8, two counts of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a(a), 53a-8 and 53a-49(a)(2), one count of conspiracy to commit murder in violation of §§ 53a-54a(a) and 53a-48(a), and one count of conspiracy to commit assault in the first degree in violation of §§ 53a-59(a)(1) and 53a-48(a). "At trial, the defendant was represented by a special public defender. On several occasions during the trial, the defendant expressed his dissatisfaction with his attorney's performance. Prior to jury selection, the defendant filed a motion to dismiss his attorney. The defendant claimed that his attorney was not investigating the case adequately. The defendant's attorney acknowledged the existence of problems with investigating matters related to the case and made representations to the court concerning his investigative efforts. The court thereafter denied the defendant's motion, noting that the defendant's attorney had been a `great advocate' for the defendant.

"On March 18, 2003, just before the state rested its case, the court conducted an in-chambers conference with the prosecutor and the defendant's attorney. The defendant's attorney informed the court that he did not intend to call any witnesses and that the defendant disagreed with this aspect of his trial strategy. The court subsequently stated to the defendant in open court that it was aware of the proposed strategy of the defendant's attorney as well as the defendant's dissatisfaction with it. The court stated: `Did you want to tell me anything about that? You don't need to tell me anything about it, but I just wanted to give you an opportunity, if you did, to be heard yourself. It's [your attorney's] decision, but I understand sometimes that counsel and their clients can have different points of view, and [your attorney] told me that you and he do have a different point of view. I just want to give you an opportunity, if you wish to, to make me aware of what your point of view is. Did you want to say anything?' "The defendant replied that he viewed his attorney's strategy as being `too narrow' and that he believed that, if the defense called witnesses to testify, the jury would be able to evaluate the case `from a different angle.' The defendant expressed his view that for the defense not to present any evidence would afford the jury only `one option,' which would lead to a finding of guilt. The defendant analogized his attorney's strategy to one used in the game of chess and opined that it was inappropriate. The defendant also recalled that, in a prior trial, the jury found him guilty after the attorney representing him in that case did not present any evidence in his defense.

"The court informed the defendant that `these kind of tactical decisions' were for his attorney to make after consulting with the defendant. The court asked the defendant's attorney if he had discussed this strategy with the defendant; the defendant's attorney represented that he had done so. The defendant's attorney added that, after additional consideration, he had become `even more solid in [his] position' to forgo the presentation of any evidence.

"The court then addressed the defendant as follows: `I can't fully appreciate your feelings because I'm not in your place. I certainly understand, I think, your reservations, having gone through this experience once. At the same time, these are [your attorney's] decisions. He's a very experienced attorney. He has tried many cases. I've had the opportunity to observe his performance in this case from ... January 8, 2003, when we had some hearings on motions. As far as I'm concerned, his performance has been beyond competent and [has] been superior. If these are his decisions, I'm sure he has given them ample consideration. I'm sure he has taken into consideration your feelings about it, and those are decisions that are left to the attorney for good reason, sir.' "After the court discussed other matters with the prosecutor, it canvassed the defendant concerning his decision to waive his right to testify. The court thereafter informed the defendant's attorney and the prosecutor that, absent a request to the contrary from the defendant's attorney, it would deliver the standard instruction informing the jury that it could draw no adverse inference from the defendant's decision not to testify. The following colloquy between the defendant and the court then took place:

"`[The Defendant]: Excuse me, Your Honor. Don't I have the right to finish this case myself without him there?

"`The Court: In a word, no. But are you making that request to represent yourself in the remainder of the case?

"`[The Defendant]: I mean, if he's not going to do what I feel is in my best interest, I don't think that he should be my attorney. I mean, this is my life. Like I explained to him, when this is over, if I lose, he just goes on to another case. I'm the one who has to go to jail. And he's not doing what I feel is in my best interest. He's doing what he feels is in his best interest, not mine. So, I don't understand how his interest comes before my interest.

"`The Court: Well, it doesn't appear to me, Mr. Flanagan, based on my observations of [your attorney's] performance from January 8, 2003, to today, which is March 18, 2003, that his decisions and his actions have been in his interest as opposed to yours. So, I'm—and I can't imagine why he'd be changing courses now. I mean, [your attorney's] decisions, as best as I have observed, have been solely in your interest. And his performance has been beyond competent and, in my view, superior over the last two and one-half months. So, while you may disapprove of his trial tactics, and I understand your feelings, his obligation is to consult with you and then to make his best professional decisions. The fact that you disagree with him over trial tactics does not, at this stage of the case where the state is about to rest, after we have been on trial essentially for about two and one-half months, does not constitute the kind of exceptional circumstances that I would have to find in order for me to allow you either to have a new lawyer or to represent yourself at this point in time. So, if you're making a request of me that you be allowed to represent yourself or that you be allowed to retain or have new counsel appointed for you, that request is denied.' The defendant did not address the court further, the defendant's attorney did not address the court with regard to the defendant's statements and the court thereafter turned its attention to other matters. The defendant's attorney did not present any evidence on the defendant's behalf.

"At the commencement of court proceedings two days later, on March 20, 2003, the court addressed the defendant's attorney with regard to whether it should continue to permit the defendant to remain unshackled in the courtroom during the proceedings. The court explained that it asked the defendant's attorney to speak to him with regard to this issue, as follows: `I asked [your attorney] to do that, Mr. Flanagan, because I know you're angry and disappointed the other day at the turn things took about resting and my not permitting you to represent yourself.' The defendant's attorney related to the court that `strategic differences' between himself and the defendant continued to exist. After the court addressed other matters before it, the defendant's attorney informed the court that the defendant desired to state something `on the record for his own sake at [that] point because we do have the disagreement.' With the court's permission, the defendant stated, `I just want to put it on the record that I wanted to call witnesses and that I feel that this is being done against my will and it's not what I want.' The court noted that the defendant's comments were reflected in the record." State v. Flanagan, supra, 102 Conn.App. at 107-11, 925 A.2d 385. The jury subsequently returned a verdict finding the defendant guilty of conspiracy to commit assault in the first degree in violation of §§ 53a-59(a)(1) and 53a-48(a), and not guilty of the...