State v. Orlando

163 Conn.App. 155

134 A.3d 708

STATE of Connecticut

v.Gilbert ORLANDO.

No. 36402.

Appellate Court of Connecticut.

Argued Nov. 19, 2015.

Decided Feb. 16, 2016.

Alan Jay Black, for the appellant (defendant).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and James M. Bernardi, supervisory assistant state's attorney, for the appellee (state).

ALVORD, KELLER and FLYNN, Js.

FLYNN, J.

The principal issue to be decided in this case involves whether a criminal defendant has an absolute right under either the United States constitution or our state constitution to demand the replacement of his court appointed counsel if such a request is made almost five months prior to the date that his actual trial begins.

The defendant, Gilbert Orlando, appeals from the judgment of conviction by a three judge panel of two counts of manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a. His sole ground for appeal arises out of the court's denial of his request for a new attorney to represent him in his trial, which he alleges violates his right to counsel guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We conclude that the court did not abuse its discretion in denying his motion to substitute counsel and affirm the judgment.

The following procedural history and facts, which the panel reasonably could have found, are pertinent to our review. On June 14, 2010, the defendant went to the home of his former wife, Enid Dickens, where a dispute began between them. This dispute arose out of the fact that locks had been changed at the home the defendant had formerly occupied and his claim that Dickens had enabled her brother to steal his identity, who then used the defendant's identity to pay for his medical bills. After this argument at the home became heated, and Dickens attempted to hit the defendant with a lamp, he pulled out a gun and shot both his wife and his mother-in-law, Rona Knight, causing their deaths.

Shortly thereafter, the defendant telephoned both Kerry Haynes and John Pounds admitting that he had killed both women. A neighbor had heard the shots fired by the defendant at Dickens' home, alerted the Norwalk police, and police response to the scene of the killing was rapid. Sergeant Frank Reda of the Norwalk Police Department, with the aid of a police dog, apprehended the defendant in a wooded area near Interstate 95. Detective David Orr of the Norwalk Police Department interviewed the defendant and asked him where the gun he had used was then located. The weapon, a .357 Magnum, was seized after the defendant pointed to it. Detective James O'Leary and Sergeant Drew Sedlock, both of the Norwalk Police Department, interviewed the defendant. O'Leary read the defendant his rights under Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because the defendant could not read. The defendant gave the police a statement admitting that as the dispute escalated, he pulled out his gun and shot both his former wife and her mother. The defendant was arrested by the Norwalk Police Department and ultimately arraigned in Norwalk Superior Court. On June 15, 2010, the court, Comerford, J., appointed public defender Barry Butler to represent the defendant. On two occasions the defendant asked the court to remove Butler and appoint another attorney to represent him. The first request occurred before October 5, 2012. The second request, which occurred at trial, is not asserted as grounds for this appeal.

The defendant was charged in a substitute information with two counts of murder in violation of General Statutes § 53a–54a for the shooting deaths of Dickens and Knight, respectively, and a third count of capital felony in violation of General Statutes (Rev. to 2009) § 53a–54b (7). The capital felony charge was lodged because there were two murders charged to the defendant. The defendant interposed a defense of extreme emotional disturbance, as provided in § 53a–54a (a). After trial, the three judge panel found that this defense was proved by the defendant by a preponderance of the evidence. The panel, therefore, found the defendant not guilty of both murder counts, but did find the defendant guilty of manslaughter in the first degree with a firearm pursuant to § 53a–55a. The panel found the defendant not guilty of capital felony because the state had failed to prove that two murders were committed in the same transaction.

It is not disputed that at some point prior to October 5, 2012, the defendant made a pro se motion seeking to replace Butler with a new court appointed attorney. At that point in time, Butler had been representing the defendant since his June 15, 2010 date of arraignment. Butler had retained an expert for a mental health evaluation of the defendant. The case was placed on the trial list on September 13, 2011, but further mental evaluations of the defendant were permitted. The state advised the court on October 5, 2012, that at some point the defendant had filed a handwritten pro se motion seeking replacement of his court appointed counsel.

Judge White gave the defendant a hearing on his motion to replace counsel and the defendant placed his complaints about Butler on the record. They can be summarized in five categories, that his counsel (1) was not doing anything for him, (2) did not provide him with paperwork concerning his case, (3) did not take up and investigate his claim of identity theft, (4) did not investigate his claim that Dickens and her family were subjecting him to voodoo, and (5) did not secure his clothing and other personal property while he was jailed awaiting trial. In an articulation, Judge White found that after careful consideration of the defendant's claims that they were "not credible and lacked a substantial factual basis."

In response to the defendant's assertions, at the hearing, Butler indicated that (1) he was prepared to try the defendant's case, (2) he had not given the defendant written materials, but pointed out that the defendant was illiterate, and noted that he had read to him paperwork generated by the case, (3) he had the information needed to present facts concerning the theft of the defendant's identity in connection with his defense of extreme emotional disturbance, (4) the Dickens family had destroyed physical evidence relating to voodoo that prevented further investigation, (5) the defendant's personal property had been thrown away by the victim's family and therefore, Butler could not assist him in its retrieval. In his articulation, Judge White, found that he did credit Butler's representations. The court further found that Butler had "reviewed the State's factual allegations [against the defendant] with the defendant; informed the defendant of all discovery related information; was ... preparing a defense of extreme emotional disturbance based on the defendant's identity theft and voodoo claims; explained the applicable law to him; [had] filed or would file all appropriate motions; made a good faith effort to recover the defendant's personal belongings from the crime scene; and was fully prepared to vigorously represent the defendant at trial."

Practice Book § 3–9(e) provides, in pertinent part, that subject to certain exceptions that do not apply to these circumstances, "no attorney shall withdraw his or her appearance after it has been entered upon the record of the court without the leave of the court." Practice Book § 3–10(a) provides, in relevant part, that "[n]o motion for withdrawal of appearance shall be granted unless good cause is shown ...." "A request for substitution of counsel requires support by a substantial reason ...." State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987). In his articulation, Judge White found that "[t]here simply was no credible factual basis or substantial reason that convinced this court to exercise its discretion to allow the defendant to change lawyers."

I

We first turn to the defendant's claim under the United States constitution that the court abused its discretion in denying his motion to replace his court-appointed counsel. We disagree with the defendant's claim.

On appellate review, such claims are reviewed under an abuse of discretion standard. State v. Gonzalez, 205 Conn. 673, 683, 535 A.2d 345 (1987). A defendant has a sixth amendment right to counsel. Wheat v. United States, 486 U.S. 153, 158, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). However, an impecunious defendant does not have a right to choose his own counsel. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). The sixth amendment "guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Id.

"The Sixth Amendment to the Constitution guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence. In United States v. Morrison, [449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564] (1981), [the Supreme Court] observed that this right was designed to assure fairness in the adversary criminal process. Realizing that an unaided layman may have little skill in arguing the law or in coping with an intricate procedural system, Powell v. Alabama, [287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158] (1932) ; United States v. Ash, [413 U.S. 300, 307, 93 S.Ct. 2568, 37 L.Ed.2d 619] (1973), [the Supreme Court has] held that the Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime.... [The Supreme Court has] further recognized that the purpose of providing assistance of counsel is simply to ensure that criminal defendants...