State v. Kerlyn T.

337 Conn. 382

253 A.3d 963

STATE of Connecticut

v.KERLYN T.^*

SC 20380

Supreme Court of Connecticut.

Argued September 18, 2020

Officially released November 9, 2020^**

James B. Streeto, senior assistant public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Sharmese Walcott, executive assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

PER CURIAM.

Following a trial to the court, the defendant, Kerlyn T., was convicted of numerous offenses, including aggravated sexual assault in the first degree, home invasion, risk of injury to a child, and assault in the second degree with a firearm. On appeal to the Appellate Court, the defendant claimed that his convictions should be reversed because the trial court incorrectly determined that his jury trial waiver was knowing, intelligent and voluntary. The Appellate Court disagreed and affirmed the trial court's judgments. State v. Kerlyn T ., 191 Conn. App. 476, 478–79, 215 A.3d 1248 (2019). We granted the defendant's petition for certification to appeal, limited to the following question: "Did the Appellate Court correctly hold that the trial court properly found the defendant's waiver of his right to jury trial was constitutionally valid?" State v. Kerlyn T ., 333 Conn. 928, 218 A.3d 68 (2019). We answer that question in the affirmative and, accordingly, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "On May 26, 2013, the defendant confronted and assaulted the victim. On May 28, 2014, the defendant broke into the victim's Danbury apartment armed with a semiautomatic assault style rifle. Although the victim was not present, the defendant remained in the apartment, concealing himself therein. The victim returned to the apartment later that evening accompanied by her minor child¹ and a coworker. Once inside, they were confronted by the defendant and held at gunpoint ... for approximately three hours. During that time, the defendant forcefully restrained the victim, bound her to a chair, taped her mouth shut and, thereafter, assaulted her both physically and sexually, while the minor child and the coworker were present in the apartment. [When the child tried to intervene to protect the victim, the defendant shoved him violently against the wall.]

"The defendant was subsequently arrested [and] ... charged ... with aggravated sexual assault in the first degree in violation of [General Statutes] § 53a-70a (a) (1), home invasion in violation of [General Statutes] § 53a-100aa (a) (2), risk of injury to a child in violation of [General Statutes] § 53-21 (a) (1), assault in the second degree with a firearm in violation of [General Statutes] § 53a-60a (a), unlawful restraint in the first degree in violation of [General Statutes] § 53a-95 (a), two counts of assault in the third degree in violation of [General Statutes] § 53a-61 (a) (1), three counts of threatening in the first degree in violation of [General Statutes] § 53a-61aa (a) (3), criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), strangulation in the second degree in violation of General Statutes (Rev. to 2013) § 53a-64bb (a), intimidating a witness in violation of General Statutes § 53a-151a, kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), and criminal violation of a protective order in violation of General Statutes (Rev. to 2013) § 53a-223." (Footnote in original; footnote omitted.) State v. Kerlyn T ., supra, 191 Conn. App. at 479–80, 215 A.3d 1248.

"On January 22, 2015, following the defendant's arrest, Attorney Mark Johnson, a public defender, appeared before the court on behalf of the defendant and requested a formal competency evaluation of the defendant pursuant to General Statutes § 54-56d, on the basis of Attorney Johnson's belief that the defendant was unable to assist in his own defense.² During an otherwise brief hearing, the court granted the motion after Attorney Johnson stated that the defendant's state of mind was impairing his ability to prepare a proper defense.

"The competency evaluation was conducted on February 13, 2015, by the Office of Forensic Evaluations [of the Department of Mental Health and Addiction Services], which determined that the defendant, at that time, was not competent to stand trial. It further concluded that there was a ‘substantial probability [that the defendant] could be restored to competence within the maximum statutory time frame,’ and, therefore, ‘recommend[ed] an initial commitment period of sixty days ... [in] the least restrictive setting ....’ " (Emphasis in original; footnote altered.) Id., at 481, 215 A.3d 1248. "After the court adopted the evaluation, the defendant was admitted to Whiting Forensic Division of Connecticut Valley Hospital (Whiting) for treatment and rehabilitation. On May 7, 2015, the court, Russo , J ., adopted the conclusion of a second competency evaluation administered at Whiting on April 23, 2015, that determined that the defendant was competent to stand trial.³

"On November 6, 2015, after the defendant rejected the state's offer of a plea agreement, the court notified the defendant that the matter would be placed on the trial list and that jury selection would commence the following month. On February 6, 2016, when the defendant appeared before Judge Russo for jury selection, the defendant requested that the court provide him with more time to consider whether to elect a jury trial or a court trial. The court denied his request.

"At that hearing, defense counsel, Attorney Gerald Klein,⁴ was unable to ascertain whether the defendant wanted to elect a jury trial or a court trial and moved for a second § 54-56d competency evaluation due to his belief that the defendant was unable to continue assisting with his own defense. In response, the court engaged the defendant in a lengthy colloquy and permitted him to speak freely about various grievances, which ranged from his frustrations with the discovery process to an alleged assault that occurred during his confinement at Whiting.

"At the conclusion of the colloquy, the court denied Attorney Klein's request for a second competency evaluation, stating: ‘[A]fter spending nearly [one and one-half hours] with [the defendant] on a number of topics, [I] cannot justify ordering the examination for a variety of reasons. For one, [the defendant] has presented himself here today, as I have witnessed him in the past, [as] a competent, articulate, [and] to steal a phrase from [Attorney] Klein, [as] a very measured individual, who, at least in my view, certainly understands the nature of the proceedings here in court, certainly understands the function of the personnel that are assembled in this very room, certainly understands the nature of the proceedings against him and the charges that have been alleged against him. ... I also believe—and I realize that ... [Attorney] Klein may [disagree] on this point—that [the defendant] does have the ability to assist in his own defense. ... So, I do not find that the examination at this point in time is justified.’ " (Footnote altered; footnote in original.) Id., at 481–83, 215 A.3d 1248.

"The court [then] proceeded to address the issue of whether the defendant would elect a jury or a court trial. Taking into account the defendant's earlier request for more time [in which to make that decision], the court [called a recess to allow] the defendant to meet with Attorney Klein [privately. Before leaving the courtroom, Attorney Klein informed the court that he and the defendant had already discussed the issue at length and that he did not believe that further discussions would be ‘fruitful.’] After a forty minute recess, the defendant [returned to the courtroom and] waived his right to a jury trial .... Prior to [the defendant's] making that decision, the [court allowed the defendant to meet briefly with his mother so that he could explain his decision to her, after which the] following canvass occurred on the record.

" ‘The Court: ... I would ask both counsel to pay particular[ly] close attention to my questions. If I miss any, please let me know, so that we can complete the canvass. ... [O]n the issue of waiving your constitutional right to a jury trial ... the United States constitution and our state constitution both mandate that you have a constitutional right to be tried by a jury of your peers. Do you understand that, [sir]?

" ‘The Defendant: Yes, Your Honor.

" ‘The Court: And after speaking with you and, equally as important, speaking with [Attorney] Klein, you have elected to waive that right to a jury trial and you've elected to have [what is] called a courtside trial, meaning that, likely me or someone like me, another Superior Court judge, would be the finder of fact in the trial and also would be the sentencing judge if you were found guilty. ... Is that your understanding, [sir]?

" ‘The Defendant: Yes, I understand ....

* * *

" ‘The Court: [Sir], are you on any drugs or medication that would affect your ability to understand what I'm saying right now?

" ‘The Defendant: No, Your Honor.

" ‘The Court: And have you had time to consult with [Attorney] Klein about your election to waive your constitutional right to a trial by jury and [to] elect a courtside trial? ...

" ‘The Defendant: Yes, Your Honor.

" ‘The Court: And I believe [Attorney] Klein ... said that he would encourage you to waive your right to a jury trial and elect a trial by the court. And do you agree with him on that suggestion, [sir]?

" ‘The Defendant: Yes, Your Honor.

" ‘The Court: And are you aware ... [that], as you stand...