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State v. Silva

Court of Appeals of Connecticut

June 14, 2016

STATE OF CONNECTICUT
v.
CORDARYL SILVA

          Argued March 7, 2016

         Appeal from Superior Court, judicial district of Ansonia-Milford, Markle, J.

          Glenn W. Falk, assigned counsel, for the appellant (defendant).

          Brett R. Aiello, special deputy assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Charles M. Stango, supervisory assistant state’s attorney, for the appellee (state).

          Sheldon, Prescott and Norcott, Js.

          OPINION

          SHELDON, J.

         The defendant, Cordaryl Silva, appeals from the judgment of conviction for murder in violation of General Statutes § 53a-54a (a), [1] which was rendered against him after a jury trial. The defendant appeals on two grounds: (1) that the trial court improperly denied his request for self-representation, and thus denied him his sixth[2] and fourteenth[3] amendment right to represent himself; and (2) that the state improperly used his post-Miranda[4] silence to imply his guilt, thus violating his fifth[5] and fourteenth[6] amendment privilege against self-incrimination. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. In 2012, the police were investigating the victim, Javon Zimmerman, and the victim’s brothers, Keyshon and Roo, for drug sale activity. The defendant had an ongoing feud with the Zimmermans. The feud stemmed from the Zimmermans’ failure to make promised payments to the prison commissary account of the defendant’s half-brother, Stephen Cook. In 2009, Cook had shot and killed a drug dealer, Kieran Stanley, at the request of the Zimmermans. The feud came to a head on May 12, 2012, when the defendant approached the victim while he was in a vehicle in the parking lot of RJ’s Cafe´, a bar in Derby. After the victim jumped out of the vehicle, the defendant walked toward him, said, ‘‘Fuck you, Javon, ’’ and shot him two times. The victim died in the parking lot.

         The jury returned a verdict of guilty on April 8, 2014, and on the basis of that verdict, the court found that the defendant had violated his probation. On June 24, 2014, the court sentenced him to fifty years incarceration plus ten years of special parole on his conviction for murder and three years for the violation of probation, to run concurrently, for a total effective sentence of fifty years incarceration plus ten years of special parole. This appeal followed. Additional facts will be set forth as necessary.

         I

         We first address the defendant’s claim that the trial court abused its discretion by denying his request for self-representation in violation of his right to self-representation under the sixth and fourteenth amendments. The defendant argues that he made a clear and unequivocal request to represent himself that the court denied for improper reasons. More specifically, the defendant argues that the court abused its discretion in denying his request for self-representation because it based its denial on what it thought were his frivolous reasons for wanting to represent himself, not on any delay or disruption of the trial that was likely to result from his self-representation.

         The following additional facts are relevant to this claim. Prior to trial, the defendant’s special public defender, Lawrence Hopkins, filed a motion to withdraw his appearance because the defendant and his mother had filed grievances against him. On April 9, 2013, at a hearing on the motion to withdraw, Hopkins told the court, ‘‘I really think it’s in [the defendant’s] best interests to have another attorney. Communications between [him and me] have been bad, at best. The situation between the family and [me], I would best describe as antagonistic.’’ The court, Iannotti, J., did not act on Hopkins’ motion. Instead, it continued the case until July 9 to give the defendant or his parents time to hire new counsel. The defendant never retained new counsel, however, and so three days of jury selection began on February 25, 2014, with Hopkins representing the defendant.

         On the morning of April 1, 2014, just as the court, Markle, J., was announcing that it was ready to bring in the jurors to start hearing the evidence at trial, the defendant interrupted the judge and asked permission to address the court. The court allowed the defendant to make a statement in which he described his longstanding difficulties with Hopkins. He said that he believed that Hopkins was not working on his behalf. The defendant went on to describe Hopkins’ failure to follow up with two witnesses who would have purportedly testified that he had not shot Javon Zimmerman, but who would not be willing to identify the actual shooter. In addition, the defendant recounted several instances in which he felt that Hopkins had lied to him. The defendant also described his disagreement with Hopkins’ trial strategy, including as to the witnesses to be called and the jurors to be selected. Hopkins disputed several of the defendant’s accusations and provided an explanation as to why certain witnesses had not been called: ‘‘I don’t know who they are. And if in fact they exist and they were a witness to this thing or are going to suggest that they saw someone else shoot this person but they won’t say who it is, that gives me grave doubts as to, number one, their veracity, and number two, their very existence.’’ The court explained to the defendant that his concerns about his attorney had already been resolved on pretrial motions, and thus announced that it was prepared to move on with the evidence.

         Later that day, after the court gave the jury preliminary instructions, Hopkins made the following statement to the court, outside the presence of the jury: ‘‘Your Honor, against my advice [the defendant] has decided that he wants to-that he would like to represent himself throughout the course of these proceedings. I indicated to him that while that is not advisable, number one, it will not delay the process, that we’re here, ready to go.

         ‘‘I indicated that it is customary that a lawyer would be appointed as standby counsel, which is a role I am happy to assume. I also indicated to him that the rules require that I not sit at defense table with him, but be available in the courtroom in case he has any legal questions for me, and I am certainly willing to do that.’’

         The court asked the defendant if Hopkins was correct as to the reasons why he wanted to represent himself, and the defendant responded, ‘‘No, I didn’t want self-representation. I wanted new representation. I was just . . . asking him about my defense, and I asked him, could I subpoena a couple of people, and he said no.’’ The court then advised the defendant not to discuss his defense on the record, but the defendant continued, ‘‘I just asked him a question about whether I can subpoena some people. He is telling me no, and he said, well, the only way you are going to subpoena people . . . or ask questions that you have is if you represent yourself. So, he basically gave me no option but to just sit here and go with something I don’t even know about because he won’t even tell me his plan; he won’t tell me nothing. He said, just represent yourself. So, he is putting me in a rock and a hard place. I don’t know what to do.’’ The court then said, ‘‘Well, based on that, I am not going to grant you your motion for self-representation. Legally, that’s-besides being at the absolute eve of the trial and the witnesses being called [are] here to start, besides the procedural aspects, the question of when and how subpoenas are rendered can be best addressed by an attorney . . . not by somebody without the experience.’’ The defendant, however, persisted, ‘‘Can I ask you a question? Is there no way that you can order him to work with me? Is there no way that the court can order him to work with me and that we can both work together on this case, instead of him just saying he do it his way or it’s no way at all? Is there any way that you can . . . get him to work with me or at least meet me halfway?’’ Hopkins then said, ‘‘The question [is], do you want to represent yourself or not; that’s the question, yes or no.’’ The defendant did not answer that question, instead asking, ‘‘The question is, can you work with me?’’

         The court then canvassed the defendant, eliciting from him that he was twenty-six years old, had a general equivalency diploma, and had worked in construction with his father and as a dishwasher. The court, again, stated, ‘‘I am going to deny your request for self-representation. I am sure that Attorney Hopkins knows what the law is in regard to issuing subpoenas, and I have confidence that if there is a witness to be subpoenaed that counsel is aware of the statutory provisions where it is allowed, and how it is allowed, and when it is allowed, and I am not sure that you do. So I don’t think self-representation on that basis is appropriate.’’ Following that colloquy, the jurors were invited to reenter the courtroom, and the state began to present its case.

         After several state’s witnesses had testified on the morning and in the early afternoon of the first day of trial, Hopkins again informed the court that the defendant wished to address it. The following discussion then ensued:

‘‘The Defendant: Excuse me, Your Honor. I notice during the cross-examination they are not bringing none of the details. This guy said that, in his statement, that Javon walked up on me and I shot him. Therefore, he clearly said I walked up on Javon; that was a contradiction in his first statement. He said I had a . . . .38 revolver. Later on another witness said I had a nine millimeter. Them is clear, big contradictions that could cause reasonable doubt, but he is not bringing those up. He is not asking about my clothes. There’s a big argument about my clothes, and he is not asking any of the witnesses about my clothes or nothing . . . I feel like . . . he is missing a big part of the case.
‘‘The Court: . . . [Q]uite frankly, I will tell you that . . . you have an attorney to make some strategic decisions about what to cross-examine and what not to cross-examine on, what is relevant, what is not relevant. And sir, on every objection that you make at this point, your counsel, I see him doing a more than adequate job. He has cross-examined this witness as to any underlying motivation he may have toward the testimony. I can’t- from what you just told me, Ican’t make a determination as to whether those things, at this point, are relevant or not or the circumstances. So, I don’t-I am not going to-
‘‘The Defendant: Henever even asked-Officer Roger arrested me a few times. He said he don’t remember me. Here it is on record that he arrested me. I had several run-ins with Derby police in 2008. He clearly lied up there.
‘‘The Court: I don’t know that as a fact, sir.
‘‘The Defendant: Why would I lie in acing[7] my police records?
‘‘The Court: All right.
‘‘The Defendant: We can take a break and you can look it up online if you think I am lying. They clearly- I feel like I am getting railroaded.
‘‘The Court: All right, sir.
‘‘The Defendant: All right. I don’t have nothing else to say.
‘‘The Court: I am not going to-
‘‘[Defense Counsel]: You don’t want to do it yourself?
‘‘The Defendant: Yes.
‘‘[Defense Counsel]: Well, tell her.
‘‘The Defendant: Can I please represent myself from forward because I feel I can do a better job than cross-examining than he is.
‘‘The Court: All right. We’re going to take a brief recess.’’ (Footnote added.)
After the recess, the court ruled as follows: ‘‘[D]uring the recess I considered your comments and listened to your objections that you made on the record before we took the recess. During the recess, to let you know, I spoke with your attorney and the state, and I advised them in advance of the ruling I am about to make. But first, before I make that ruling, I am going to give you some advice, advice from the court.
‘‘I listened to your objection concerning what you considered to be a lack of cross-examination of the officer concerning what you say that he knew you, and there were prior arrests and he knew you by prior arrests. What you don’t understand is that, sir, that decision to cross-examine concerning the prior arrests, you may not understand this, but that would have been very prejudicial to you to have the jury, who has been advised constantly that there is a presumption of innocence, to be then told that you have had prior arrests. That information will be prejudicial to you. As a matter of ...

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