State v. Scott

STATE OF CONNECTICUT v. JERMAINE T. SCOTT

AC 36359

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 15, 2015

July 28, 2015

Lavine, Alvord and Bear, Js.

(Appeal from Superior Court, judicial district of New Haven, B. Fischer, J.)

Janice Wolf, senior assistant public defender, for the appellant (defendant).

Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Brian K. Sibley, Sr., senior assistant state's attorney, for the appellee (state).

Opinion

ALVORD, J. The defendant, Jermaine T. Scott, appeals from the judgment of conviction, rendered after a trial to the court,¹ of criminal possession of a firearm in violation of General Statutes § 53a-217 (a).² On appeal, the defendant (1) claims that the court improperly determined that he validly waived his right to a jury trial and (2) requests this court to exercise its supervisory authority to provide a more uniform procedure for conducting waivers of the right to a jury trial. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of the defendant's claim. On the evening of June 19, 2010, Marquise Baskin was shot and killed in New Haven. The defendant was charged with Baskin's murder and criminal possession of a firearm. On September 10, 2013, the defendant appeared with counsel before the court to conduct jury selection. The following colloquy ensued:

"The Court: Okay. All right. Good morning to everybody. And this is Mr. Scott here. . . . Is it my understanding, Attorney Hopkins, that your client is opting to go courtside on the Second Count which is a claim that he possessed a firearm in violation, and he had been a convicted felon, in violation of [General Statutes § 53a-217 (a)]?

"[Defense Counsel]: That's correct, your Honor.

"The Court: All right. I'm—I want to do a canvass of Mr. Scott now. Are you prepared, Attorney Hopkins, for me to do that, or you want a minute?

"[Defense Counsel]: Oh, yes. Could I just have a moment.

"The Court: Sure.

"[Defense Counsel]: Yes. I think he's prepared for the canvass, your Honor.

"The Court: Sure. Mr. Scott, if you could stand up and, Counsel, if you could stand up also. All right. Mr. Scott, I'm going to ask you a few questions concerning what I anticipate to be your waiver of the right to have the jury decide the second count, which is possession of a firearm by a convicted felon. Is it my understanding that you want the Court, you want the judge to make a decision of guilty or not guilty on that count?

"[The Defendant]: Yes. Yes, sir.

"The Court: All right. Your attorney is standing next to you. If you don't understand my question or are confused or want his advice you could just look to him . . . before you answer my question. Okay.

"[The Defendant]: Yes, sir.

"The Court: The purpose of my questions is not totrick you or trip you up, just to make sure that you understand the waiver of a jury right. So on the First Count, which is murder, the jury would make a decision on whether the State of Connecticut has met its burden of proving each and every element beyond a reasonable doubt. That would be a jury's decision on guilt or non-guilt, you understand that; correct?

"[The Defendant]: Yes, sir.

"The Court: But on the Second Count about a possession of a firearm you're indicating to this Court that you want the judge, you want me to make a decision on whether the State of Connecticut has proven each and every element necessary in that count beyond a reasonable doubt. Is that correct?

"[The Defendant]: Yes, sir.

"The Court: All right. And you had enough time to talk to Attorney Hopkins about that decision?

"[The Defendant]: Yes, sir.

"The Court: And you're satisfied with his advice and counsel on this decision?

"[The Defendant]: Yes, sir.

"The Court: All right. But you're—you are waiving your right to have a jury decide the Second Count, and this is your decision after consulting with Attorney Hopkins that you're waiving your right to have the jury decide that Second Count and you want the Court to decide that Second Count, do you understand that?

"[The Defendant]: Yes, sir. Yes.

"The Court: All right. And you understand my—my verdict after hearing the evidence could be either consistent with the jury's verdict or inconsistent, in other words, one count might be guilty or not guilty and my count could be guilty or not guilty. Do you understand that?

"[The Defendant]: Yep. Yes, sir.

"The Court: All right. Do you have any questions about what I asked you?

"[The Defendant]: No, sir.

"The Court: All right. And nobody's forcing you to waive this right, this is your free act and deed waiving your right to have a jury decide the Second Count; is that correct?

"[The Defendant]: Yes, sir.

"The Court: Okay. Attorney Hopkins, did you want to canvass your client at all?

"[Defense Counsel]: No, your Honor."

Trial of the matter commenced on October 15, 2013. On October 18, 2013, the jury returned its verdict, find-ing the defendant not guilty of murder. Thereafter, the trial court found the defendant guilty on the count of criminal possession of a firearm. The court first found that the state had proven that the defendant was a convicted felon. The court then credited the statement of the witness to the shooting, who told police that on the evening of June 19, 2010, she saw the defendant, her nephew, with a gun and witnessed him fire six shots. The court then sentenced the defendant to five years incarceration. This appeal followed.

I

The defendant claims on appeal that the court improperly determined that his waiver of the right to a jury trial was knowing and intelligent. Specifically, the defendant contends that the court's canvass was inadequate in that "it failed to (1) tell how many jurors [the defendant] would have had versus just one judge, (2) indicate that the jury would have to be unanimous, and (3) evaluate [the defendant's] educational, work, and jury trial experience." The defendant raises this claim for the first time on appeal and requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).³ We review the defendant's claim because the record is adequate for review and his claim is of constitutional magnitude.⁴ State v. Tocco, 120 Conn. App. 768, 776, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010). We thus turn to Golding's third prong to determine whether "the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . . State v. Golding, supra, 240.⁵

We first set forth our standard of review and applicable legal principles. "The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. . . . Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. . . . In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book. . . . Our task, therefore, is to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial. . . . Our inquiry is dependent upon the particular facts and circumstances surrounding [each]case, including the background, experience, and conduct of the accused. . . . In examining the record, moreover, we will indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . [will] not presume acquiescence in the loss of fundamental rights. . . . In addition, a waiver of a fundamental constitutional right is not to be presumed from a silent record." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Gore, 288 Conn. 770, 775-77, 955 A.2d 1 (2008).

In Gore, our Supreme Court concluded that the right to a jury trial must be personally and affirmatively waived by the defendant in order to render such waiver valid. Id., 783. The court additionally exercised its supervisory authority to require, in the absence of a written waiver, the trial court to "canvass the defendant briefly to ensure that his or her personal waiver of a jury trial is made knowingly, intelligently and voluntarily." Id., 787. The court stated that "[t]his canvass need not be overly detailed or extensive, but it should be sufficient to allow the trial court to obtain assurance that the defendant: (1) understands that he or she personally has the right to a jury trial; (2) understands that he or she possesses the authority to give up or waive the right to a jury trial; and (3) voluntarily has chosen to waive the right to a jury trial and to elect a court trial." (Footnote omitted.) Id., 788-89. The court further explained that "[i]t is not necessary that the canvass required for a jury trial waiver be as extensive as the canvass constitutionally required for a valid guilty plea" because in pleading guilty, a defendant forfeits a number of constitutional rights. Id., 789 n.18.

In the present case, the defendant personally and affirmatively expressed on the record his desire to waive his right to a jury trial. The threshold Gore requirement having been satisfied, we proceed to a "totality of the circumstances analysis to determine whether the defendant's personal waiver of a jury...