Argued, January 12, 2015
Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Dewey, J.; verdict and judgment of guilty, from which the defendant appealed to this court; thereafter, the appeal was transferred to the Appellate Court, Gruendel, Lavine and Alvord, Js., which affirmed the trial court's judgment, and the defendant, on the granting of certification, appealed to this court.
Convicted, after a jury trial, of the crime of murder, the defendant appealed to the Appellate Court, claiming, inter alia, that he was entitled to a new trial because the trial court improperly forced him to choose between his constitutional right to counsel and his constitutional right to testify on his own behalf after defense counsel took the position that the defendant would be self-represented if he testified. At trial, at the close of the state's case-in-chief, defense counsel informed the court that the defendant intended to testify on his own behalf but that counsel had advised the defendant against doing so because he had declined their offer to help him prepare for testifying. Counsel expressed concerns about the defendant's competency to make the choice to testify, and also requested that the court conduct a competency hearing, but the trial court denied that request. Thereafter, in response to defense counsel's concerns, the trial court canvassed the defendant and ruled that he was a competent witness. Defense counsel then stated to the court that if the defendant testified, counsel could not effectively examine the defendant, and counsel asserted that the defendant should be canvassed on representing himself. The court then addressed the defendant about his understanding of his right to be represented by counsel and the disadvantages of self-representation, and ruled that the defendant would be allowed to represent himself, but also appointed counsel to act as standby counsel for purposes of the defendant's testimony only. The defendant took the witness stand, gave a statement, and the state conducted its cross-examination, without any objections from standby counsel being interposed. On appeal, the Appellate Court concluded that although the record was unclear as to whether defense counsel was no longer representing the defendant when he testified, even assuming that the defendant had been self-represented, the trial court had properly canvassed the defendant to ensure that his choice to represent himself had been made in a knowing and intelligent fashion. The Appellate Court rendered judgment affirming the defendant's conviction, and the defendant, on the granting of certification, appealed to this court. Held that the defendant was entitled to a new trial because the Appellate Court incorrectly concluded that the defendant had waived his right to counsel when he elected to testify at trial, this court having concluded that the defendant was not represented by counsel during his testimony and had not voluntarily relinquished his right to counsel; there was no clear, unequivocal statement by the defendant that he wanted to represent himself, the trial court's statements to the defendant regarding the waiver of counsel reasonably would have been understood by the defendant to mean that, if he elected to testify, he could do so only if he represented himself, and the trial court failed to clearly explain that the defendant was constitutionally entitled to the assistance of counsel even if he elected to testify, and that, in spite of counsel's position that the defendant would be self-represented if he chose to testify, the court could compel his counsel to remain in the case in the absence of a showing of good cause to withdraw or it could appoint substitute counsel.
John L. Cordani, Jr., assigned counsel, for the appellant (defendant).
Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Donna Mambrino and Richard J. Rubino, senior assistant state's attorneys, for the appellee (state).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. McDONALD, J. In this opinion ROGERS, C. J., and PALMER and EVELEIGH, Js., concurred. ESPINOSA, J., with whom ZARELLA and ROBINSON, Js., join, dissenting.
[317 Conn. 451] Following a jury trial, the defendant, Maurice Francis, was convicted of murder in violation of General Statutes § 53a-54a. Thereafter, the defendant challenged his conviction, claiming that he is entitled to a new trial because, among other things, the trial court improperly: (1) forced him to choose between [317 Conn. 452] his constitutional right to counsel and his constitutional right to testify on his own behalf, after defense counsel took the position that the defendant would be self-represented if he testified against their advice; and (2) dismissed a juror under the mistaken view that a juror's internal assessment of evidence during the course of trial constitutes improper deliberation on the verdict. The Appellate Court affirmed the judgment of conviction. State v. Francis, 148 Conn.App. 788, 791, 86 A.3d 1074 (2014). In his certified appeal to this court, the defendant challenges the Appellate Court's rejection of these two claims. We conclude that the defendant is entitled to a new trial because he was not represented by counsel during his testimony and he did not voluntarily relinquish his right to counsel. Accordingly, we reverse the Appellate Court's judgment.
The Appellate Court's opinion sets forth a detailed account of the evidence supporting the defendant's conviction for the murder of his girlfriend, Tashima Reddick, which is not directly relevant to the issues in this appeal and therefore need not be repeated. See id., 792-96. The record reflects the following facts and procedural history relevant to the issues before this court. After the defendant was charged with Reddick's murder, public defenders, William O'Connor and Bruce Lorenzen, were appointed to represent him. The trial court, Gold, J., initially found the defendant incompetent to stand trial but restorable to competency. Physicians who later examined the defendant concluded that he was malingering. Subsequently, over defense counsel's repeated objections, the trial court, Gold, J., and Alexander, J., found the defendant competent to stand trial.
The issue of the defendant taking the stand first arose after the state objected to the defendant making statements on the record, although outside the presence of the jury, without being subject to cross-examination. [317 Conn. 453] The court, Dewey, J., responded that, if the defendant wished to make statements, he could do so only if he chose to testify. The court noted that the defendant had been consulting with counsel in writing and that he should continue to cooperate with them. The next day, defense counsel noted for the record that they disagreed with the court's characterization of the defendant's consultations with them. Lorenzen stated that defense counsel had limited contact with the defendant, by the defendant's choice, and that the defendant's views could be characterized as not " reality based." Lorenzen asserted that the defendant had not sought their advice on whether to testify and he questioned whether the defendant had the capacity to listen to any such advice. Lorenzen then stated that, " to the extent that [the defendant] does choose to take the stand, I would have to take the position that he is doing so uncounseled and in essentially . . . a manner in which he is representing himself." The defendant then interjected that he wanted to speak for himself because counsel was trying to " legally gag" him by saying that he has a mental disorder. The court reiterated to the defendant that he was required to speak through counsel.
At the close of the state's case-in-chief, defense counsel informed the court that the defendant intended to testify on his own behalf and that they had advised him against doing so. Defense counsel indicated that the defendant had declined their offer to help him prepare for testifying and expressed concerns about his competency to make this choice. The court then explained to the defendant that he had a right to choose whether to testify. The defendant responded that he had told his counsel that he wanted to testify, but that they were " trying to legally gag" him. In response to the court's suggestion that his counsel might be able to provide useful advice regarding testifying, the defendant stated: [317 Conn. 454] " I'd rather speak on my behalf than talk to these two guys here." The court then ruled that the defendant could not be forced to give up his right to testify.
Defense counsel then requested that the court conduct a competency hearing. Counsel asserted that the defendant's views did not comport with reality, pointing to the defendant's sincere belief that he did not commit the crime because he was in the custody of the Department of Correction at the time of the incident, a fact that clearly could be disproved. The court denied counsel's request.
Defense counsel then contended that the court needed to consider whether the defendant would be a competent witness. After a brief canvass, the court ruled that the defendant was a competent witness, noting that even people with severe disabilities can be competent to testify.
Having failed to persuade the court that competency issues precluded the defendant from taking the stand, defense counsel took a different tact. Lorenzen stated that, based on the defendant's failure to seek their counsel and his belief that counsel was working against him, it was Lorenzen's " assessment of the situation . . . that should [the defendant] take the stand and testify, he will essentially be representing himself." Lorenzen asserted that he could not effectively examine the defendant and meet the defendant's ends, and, therefore, the defendant should be canvassed on representing himself. Lorenzen stated that defense counsel would file a motion to withdraw if necessary. In response, the trial court addressed the defendant, stating: " [Y]our attorney is indicating that if you testify, you'll be representing yourself. Do you understand that?" After the court restated counsel's position, the court asked the defendant: " Is that what you want to do?" The defendant initially responded that it did not make any difference [317 Conn. 455] to him, but when further pressed by the court, he responded, " I'll do so . . . ." Twice thereafter, the court asked the defendant whether he understood that he had the right to be represented by counsel, to which he answered in the affirmative. The court warned the defendant of the disadvantages of self-representation, and then ruled: " I have to let him self-represent . . . . But I'm going to appoint counsel as standby counsel, certainly for periods of--for purposes of objection during the cross-examination. . . . Well, standby counsel for purposes of his testimony only."
Defense counsel examined four defense witnesses, and then the defendant took the stand. Per the court's instruction, Lorenzen asked the defendant some preliminary questions, after which he asked: " Is there anything else you'd like to tell the ladies and gentlemen of the jury about this case?" The defendant responded with a largely incoherent statement. The state then conducted its cross-examination, without any objections being interposed. The defendant declined the court's invitation to present additional testimony on redirect examination. Thereafter, defense counsel examined another witness and presented closing argument.
During the presentation of the defense, another issue arose when a juror submitted a note to the court relating to the testimony of a defense witness. After the court [317 Conn. 456] questioned the juror, it excused him and substituted an alternate juror. The jury thus constituted returned a verdict of guilty on the charge of murder. The trial court rendered judgment in accordance with the verdict and sentenced the defendant to a fifty year term of incarceration.
In the defendant's appeal from the judgment of conviction before the Appellate Court, he claimed, among other things, that the trial court improperly had: (1) forced him to choose between two fundamental constitutional rights--his right to counsel and his right to testify; and (2) dismissed the juror. State v. Francis, supra, 148 Conn.App. 791. The Appellate Court rejected both claims, as well as others not relevant to this certified appeal, and affirmed the judgment. Id. With respect to the first issue, the Appellate Court concluded that the record was unclear as to whether defense counsel was no longer representing the defendant when he testified. Id., 812. Nonetheless, the court concluded that, even assuming the defendant had been self-represented, the trial court properly had canvassed him to ensure that his choice to proceed pro se had been made in a knowing and intelligent fashion. Id., 814. With respect to the second issue, the court concluded that, although the juror expressly had stated he had not formed an opinion as to the defendant's guilt or innocence, the record nonetheless indicated there was a legitimate concern that the juror had done so. Id., 818. The Appellate Court further noted that the defendant had not shown that the juror's dismissal was harmful. Id.
This court thereafter granted the defendant's petition for certification to appeal, limited to the following issues: " 1. Did the Appellate Court properly conclude [317 Conn. 457] that the defendant waived his right to counsel when he elected to testify at trial?" ; and " 2. Did the Appellate Court properly conclude that the trial court did not abuse its discretion when it dismissed a juror and, if not, did the trial court's improper dismissal of a juror constitute reversible error?" State v. Francis, 311 Conn. 940, 89 A.3d 349 (2014). We answer the first question in the negative ...