State v. Paschal

207 Conn.App. 328

262 A.3d 893

STATE of Connecticut

v.Deja PASCHAL

AC 43270

Appellate Court of Connecticut.

Argued March 2, 2021

Officially released September 7, 2021

Laura Marie Hamilton, certified legal intern, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

Laurie N. Feldman, deputy assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Jason Germain, senior assistant state's attorney, for the appellee (state).

Elgo, Cradle and Suarez, Js.

CRADLE, J.

The defendant, Deja Paschal,¹ appeals from the judgment of conviction, rendered following a jury trial, of one count of attempt to commit assault of public safety personnel in violation of General Statutes §§ 53a-49 (a) (2) and 53a-167c (a) (5). On appeal, the defendant claims that the trial court (1) violated his constitutional right to self-representation and (2) erred by allowing the state to present evidence of uncharged misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 5, 2016, the defendant was incarcerated at Garner Correctional Institution. While making a routine inspection of the facility, Correction Officer Christopher Byars noticed that the window of the defendant's cell door had been covered with toilet paper, obstructing the officers’ view of the cell. Because obstructing the officers’ view of the cell is against the facility's regulations, Byars told the defendant to immediately remove the toilet paper. The defendant did not comply and Byars contacted his supervisor, Captain Thomas Kenny, to assist. On arriving, Kenny told the defendant to uncover the window. Although the defendant initially threatened to continue covering his window, the defendant removed the toilet paper.

Approximately fifteen minutes later, Byars again found the defendant's window covered with toilet paper. Byars contacted Kenny again, who told the defendant to remove the covering. When the defendant refused, Kenny determined that the defendant should be moved to a high security cell for additional supervision. In accordance with the facility's regulations, Correction Officers Byars, Anthony Blekis, Anthony Kacprzyski, John Reyes, and Peter Swan assisted in moving the defendant while Officer William Galpin videotaped the move. After the defendant was transferred, the officers conducted a strip search and attempted to apply in cell restraints to secure the defendant's ankles and hands in front of his body. While the officers were attempting to secure the defendant, he threatened to spit on them and loudly sucked in saliva. As a result of this threat, the officers covered the defendant's mouth and put a mesh safety veil designed to block the passage of saliva on his head. The defendant spit, striking two of the officers through the safety veil. The saliva struck Kacprzyski in the face and Blekis on the arms.

The defendant was charged with two counts of assault of public safety personnel in violation of § 53a-167c (a) (5) ; one count of assault of public safety personnel in violation of § 53a-167c (a) (3) ; and one count of attempt to commit assault of public safety personnel in violation of §§ 53a-49 (a) (2) and 53a-167c (a) (5). Following a trial, a jury acquitted the defendant of the three assault counts but convicted him of attempt to commit assault of public safety personnel. On May 21, 2019, the court, Pavia, J. , sentenced the defendant to a total effective sentence of seven years of incarceration, execution suspended after three years, followed by five years of probation, to run consecutive to the defendant's existing sentence in an unrelated matter. This appeal followed.

I

The defendant first argues that the court deprived him of his right to self-representation when it improperly denied his clear and unequivocal request to represent himself without canvassing him regarding the waiver of the right to counsel. We are not persuaded.

The following legal principles guide our analysis of the defendant's claim. "The sixth amendment to the United States constitution provides in relevant part: In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense. The sixth amendment right to counsel is made applicable to state prosecutions through the due process clause of the fourteenth amendment. ... In Faretta v. California , 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) the United States Supreme Court concluded that the sixth amendment [also] embodies a right to self-representation and that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. ... In short, forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so. ...

"It is well established that [t]he right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins. ... Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel. ...

"The inquiry mandated by Practice Book § 44-3 is designed to ensure the knowing and intelligent waiver of counsel that constitutionally is required. ... We ordinarily review for abuse of discretion a trial court's determination, made after a canvass pursuant to ... § 44-3, that a defendant has knowingly and voluntarily waived his right to counsel. ... In cases ... however, where the defendant claims that the trial court improperly failed to exercise that discretion by canvassing him after he clearly and unequivocally invoked his right to represent himself ... whether the defendant's request was clear and unequivocal presents a mixed question of law and fact, over which ... our review is plenary. ...

"State and federal courts consistently have discussed the right to self-representation in terms of invoking or asserting it ... and have concluded that there can be no infringement of the right to self-representation in the absence of a defendant's proper assertion of that right. ... The threshold requirement that the defendant clearly and unequivocally invoke his right to proceed [as a self-represented party] is one of many safeguards of the fundamental right to counsel. ... Accordingly, [t]he constitutional right of self-representation depends ... upon its invocation by the defendant in a clear and unequivocal manner. ... In the absence of a clear and unequivocal assertion of the right to self-representation, a trial court has no independent obligation to inquire into the defendant's interest in representing himself .... [Instead] recognition of the right becomes a matter entrusted to the exercise of discretion by the trial court. ... Conversely, once there has been an unequivocal request for self-representation, a court must undertake an inquiry [pursuant to Practice Book § 44-3 ], on the record, to inform the defendant of the risks of self-representation and to permit him to make a knowing and intelligent waiver of his right to counsel. ...

"Although a clear and unequivocal request is required, there is no standard form it must take. [A] defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to [that] request. Insofar as the desire to proceed [as a self-represented party] is concerned, [a defendant] must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made. ... Moreover, it is generally incumbent upon the courts to elicit that elevated degree of clarity through a detailed inquiry. That is, the triggering statement in a defendant's attempt to waive his right to counsel need not be punctilious; rather, the dialogue between the court and the defendant must result in a clear and unequivocal statement. ...

"Finally, in conducting our review, we are cognizant that the context of [a] reference to self-representation is important in determining whether the reference itself was a clear invocation of the right to self-representation. ... The inquiry is fact intensive and should be based on the totality of the circumstances surrounding the request ... which may include, inter alia, whether the request was for hybrid representation ... or merely for the appointment of standby or advisory counsel ... the trial court's response to a request ... whether a defendant has consistently vacillated in his request ... and whether a request is the result of an emotional outburst ...." (Emphasis altered; internal quotation marks omitted.) State v. Pires , 310 Conn. 222, 230–32, 77 A.3d 87 (2013).

"When a defendant's assertion of the right to self-representation is not clear and unequivocal, recognition of the right becomes a matter entrusted to the exercise of discretion by the trial court. ... In the exercise of that discretion, the trial court must weigh into the balance its obligation to indulge in every reasonable presumption against waiver of the right to counsel." (Citations omitted; internal quotation marks omitted.) State v. Carter , 200 Conn. 607, 613–14, 513 A.2d 47 (1986). With these principles in mind, we turn to the defendant's claim on appeal.

The defendant claims that he first asserted his right to self-representation in court on May 4, 2017. During that court appearance, Assistant Public Defender Thomas Leaf appeared on the defendant's behalf and informed the court, Shaban, J ., that the defendant wanted to represent himself. The following colloquy took...