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State v. Orlando

Appellate Court of Connecticut

February 16, 2016

STATE OF CONNECTICUT
v.
GILBERT ORLANDO

         Argued November 19, 2015.

          Substitute information charging the defendant with two counts of the crime of murder and with the crime of capital felony, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, White, J., denied the defendant's motion to remove counsel; thereafter, the matter was tried to a three judge court, White, Genuario and Povodator, Js.; judgment of guilty of two counts of the lesser included offense of manslaughter in the first degree, from which the defendant appealed to this court; subsequently, White, J., issued an articulation of the court's decision.

          SYLLABUS

         The defendant was charged with two counts of murder and one count of capital felony arising out of the shooting deaths of his former wife and mother-in-law. Five months prior to his trial, the defendant filed a motion seeking to substitute his court appointed counsel with different court appointed counsel. After a hearing, the trial court concluded that contrary to the defendant's claims that his appointed defense counsel was not preparing for his case, there was no credible factual basis or substantial reason to allow the defendant to change attorneys. The defendant was convicted, after a trial to a three judge court, of the lesser included offense of two counts of manslaughter in the first degree after he successfully invoked an affirmative defense of extreme emotional disturbance. On appeal to this court, the defendant claimed that the trial court improperly denied his motion to substitute his appointed defense counsel in violation of right to counsel guaranteed by the federal and state constitutions. Held that the trial court did not abuse its discretion in denying the defendant's motion to substitute counsel, the defendant having failed to demonstrate good cause why his appointed defense counsel should be dismissed: at the time of the defendant's motion, defense counsel had been representing him for more than two years and had prepared to present the defense of extreme emotional disturbance, the trial court credited defense counsel's representations as to his work on the case and consultations with his client, the court concluded that reasons underlying the defendant's motion were not substantial, and the court properly considered the fact that the defendant's case was on the ready trial list and that granting the motion for new counsel could result in further delay; furthermore, neither the federal nor the state constitution provides an absolute right to demand the replacement of a defendant's court appointed counsel.

         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. In this opinion the other judges concurred.

          OPINION

          [163 Conn.App. 156] 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 [163 Conn.App. 157] 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 [163 Conn.App. 158] 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 [163 Conn.App. 159] 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 ...


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