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State v. J.M.F.

Court of Appeals of Connecticut

January 10, 2017

STATE OF CONNECTICUT
v.
J.M.F.[*]

          Argued September 20, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Comerford, J.

          Moira L. Buckley, for the appellant (defendant).

          Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and David I. Cohen, former state's attorney, for the appellee (state).

          Lavine, Mullins and Harper, Js.

          OPINION

          MULLINS, J.

         The defendant, J.M.F., appeals from the judgment of conviction of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant raises the following seven claims: (1) the trial court abused its discretion by imposing a sanction against him that precluded him from raising an affirmative defense of mental disease or defect, ultimately violating his constitutional rights to present a defense and to due process of law; (2) the trial court erroneously concluded that he unequivocally invoked his right to self-representation and that he knowingly, intelligently, and voluntary waived his right to counsel; (3) the trial court deprived him of his right to due process of law by failing to order, sua sponte, that he undergo a competency evaluation; (4) the state unconstitutionally interfered with his right to counsel; (5) the trial court improperly continued to trial despite the existence of an appellate stay, which rendered the results of the trial void ab initio; (6) the trial court abused its discretion by not appointing a special public defender, ultimately violating his constitutional rights to counsel and to due process of law; and (7) the trial court violated his rights to due process of law and to present a defense when it refused his request to instruct the jury on renunciation and diminished capacity. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. After thirteen years of marriage, on January 4, 2010, the defendant's wife served him with divorce papers.

         On January 6, 2010, two days after having received the divorce papers, the defendant asked his wife to withdraw the dissolution action; she refused to do so, but she did agree that she would file a motion for reconciliation if the defendant would agree to go to counseling. After putting the children to bed for the evening, the defendant and his wife retired to their bedroom.

         In the bedroom, they began to discuss the ensuing divorce. As they did so, the defendant became enraged. He tackled his wife, knocking her to the floor, and he put his hands around her neck while slamming her head into the floor. The defendant told her: ‘‘I'm killing you.'' He repeatedly hit her in the face and body with his fists, pulled out her hair and put his hands around her neck. At one point, he threw her to the other side of the bedroom, where she landed in front of the fireplace. She ‘‘felt like [she] was dying [and] . . . was in incredible pain.'' The defendant then knelt on top of her and repeatedly hit her in the face and head with a metal flashlight. She lost consciousness approximately three times during the attack.

         After this attack, the defendant retreated to the master bathroom where he called to his wife, telling her that he was going to kill himself and that he needed her assistance to do so. She did not go into the bathroom, but, instead, believing she was dying and wanting to save her children, she accessed the security alarm in the bedroom. The defendant again became enraged and tackled her. He then told her that he was going to the kitchen to get a knife to cut his jugular vein. When the defendant went downstairs, she gathered up the children and drove them to the home of a neighbor. The neighbor called the police.

         When the police arrived at the defendant's home, the defendant surrendered peacefully. The police located a belt, attached to a pole in the closet, which the defendant said he used to try to hang himself. The defendant was charged with and convicted of attempt to commit murder, assault in the first degree, and risk of injury to a child. He received a total effective sentence of fifteen years imprisonment, followed by five years of special parole, and the court imposed a full criminal restraining order. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         On appeal, the defendant first claims the trial court abused its discretion by imposing a sanction against him for his refusal to sign the authorization forms that were required by the state's expert before the expert would conduct a psychiatric examination of the defendant. In particular, the defendant argues that the sanction improperly precluded him from raising a mental disease or defect affirmative defense, [1] ultimately violating his constitutional rights to present a defense and to due process of law.

         Specifically, the defendant argues: ‘‘Assuming, arguendo, that [he] violated the court's . . . order, the trial abused its discretion by precluding him from asserting the mental disease or defect defense. The court's extreme remedy was unnecessary to protect the state from prejudice. The court failed to weigh the rationale for exclusion against the defendant's right to present a defense. Considering the factors articulated in [State v. Tutson, 278 Conn. 715, 899 A.2d 598 (2006), the defendant's] alleged violation was not substantive, but ‘technical.' '' The defendant further argues: ‘‘In circumstances such as this, preclusion of a defense should not be the court's knee jerk reaction where other less prejudicial remedies are available.''

         In response, the state argues that the trial court properly granted the state's motion to preclude defense ‘‘[a]fter concluding that the defendant had continually engaged in dilatory tactics with the intent of ambushing the state with regard to his defense of not guilty by reason of mental disease or defect . . . . In light of his failure to comply with Practice Book § 40-19, [2] preclusion was not abuse of discretion.'' (Citations omitted; footnote added.) We conclude that the court did not abuse its discretion.

         To provide the proper context for the trial court's ruling and ensure a full understanding of the procedural history of this case, we set forth the following detailed facts, which inform our review of the defendant's claim. The defendant was arrested in relation to this case in January, 2010. Shortly thereafter, beginning in early 2010, he retained Attorneys Eugene J. Riccio and Timothy J. Moynahan to represent him. In September, 2010, the defendant requested a continuance to further consider the psychiatric aspects of his case, which the court granted. In April, 2011, the case was placed on the jury list.

         On August 20, 2012, the court inquired as to whether the defendant intended to assert a defense of mental disease or defect. The defendant responded that he did not have the funds to be evaluated for such a defense at that time.[3] Thereafter, on September 5, 2012, the defendant filed a notice of defense of extreme emotional disturbance. On November 13, 2012, the state represented that the attorneys in the civil assault action; see footnote 3 of this opinion; had agreed to release $25, 000 from the prejudgment remedy attachment. The court continued the matter.

         On January 25, 2013, the defendant filed an amended notice of his defense to include the defense of mental disease or defect. On February 1, 2013, the defendant asked for another continuance to work on his affirmative defense, which the court granted.

         On March 22, 2013, the defendant informed the court that he was now working with Howard V. Zonana, a psychiatrist, on his affirmative defense, but that he needed more time. He requested a continuance to April 4, 2013, ‘‘to complete that work, '' which the court granted. The court explained, however, that it had set the matter down for trial to begin in the middle of April.

         On April 4, 2013, the defendant informed the court that he now intended to represent himself during his criminal trial. The trial court informed the defendant that it did not want the trial in this matter to suffer any further delays, and it ordered the matter continued for a Faretta hearing. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (requiring inquiry by court when defendant seeks to waive counsel and represent himself).

         On April 10, and April 12, 2013, the court conducted a Faretta hearing. On the first day of this hearing, April 10, 2013, the defendant stated that he ‘‘would welcome the assistance of a public defender.'' In response, the court inquired as to whether the defendant had applied for those services, and the defendant said he had not applied. The court then requested the presence of a representative from the public defender's office to determine whether the defendant qualified for services from that office. During this hearing, the defendant also confirmed that he was pursuing a defense of mental disease or defect. He also informed the court that he had been under psychiatric care for forty months, that he had engaged the services of a psychiatrist who was trained in the area of his defense and who was in the process of performing an examination of him. He further informed the court that he had engaged the services of a neuropsychiatrist, who also was doing neurological testing on him.

         On the second day of the Faretta hearing, April 12, 2013, before proceeding with the hearing, the court heard from Attorney Barry Butler from the public defender's office. Butler informed the court that his office had concluded that the defendant was not indigent and, therefore, did not qualify for its services. The court then considered the defendant's request to represent himself, and ultimately granted his request. The court nonetheless appointed the defendant's previous counsel, Riccio and Moynahan, as standby counsel for the defendant.

         At this point in time, the defendant informed the court that he now had sufficient funds for his experts. He also stated that he had an appointment scheduled with Leslie Lothstein, a forensic psychologist, who was an expected witness and was someone whom the defendant had been seeing for forty months. He also told the court he had an appointment with Godfrey Pearlson, a psychiatrist, at the Olin Neuropsychiatry Research Center for a functional magnetic resonance imaging (FMRI) examination. The defendant also explained that he still had been seeing Zonana. The court scheduled a status conference for April 23, 2013. The court told the defendant that it expected him to inform the court at that status conference whether his experts would be issuing reports.

         At the April 23, 2013 status conference, however, the defendant informed the court that Pearlson had performed the FMRI, but that a report would not be available that week.[4] He also explained that Zonana and Lothstein would not be able to issue their reports until after they had reviewed Pearlson's report. The court gave the defendant thirty days to produce the written reports, so that the state would have time to take appropriate action after receipt thereof, and it scheduled another status conference for May 21, 2013.

         At the May 21, 2013 status conference, the defendant stated that Zonana had received ‘‘something'' from Pearlson, but that he, the defendant, was ‘‘reluctant to get any information'' from his experts. The defendant explained that this was because the prosecutors had indicated that they felt that ‘‘there [was] nothing that could constitute . . . attorney work product'' in the defendant's case even though he was a self-represented party and a member of the Connecticut bar. The defendant requested a continuance of approximately two and one-half weeks.

         The court cautioned the defendant that ‘‘this is not a chess game, '' and that it did not want to see a situation where the defendant was attempting to put forth a defense of mental disease or defect without any expert reports. The court also clearly informed the defendant that the state needed this information to prepare for trial. The court then continued the matter to June 11, 2013, stating that it expected that the state would have the reports by that time and would know what it wanted to do in response thereto.

         On June 11, 2013, the defendant informed the court that the FMRI had been conducted on April 16, 2013, that Pearlson and Zonana had been reviewing the results, but had not yet issued a report to the defendant. He further explained that Zonana could not issue such a report until the defendant had a CAT scan, which was scheduled for June 13, 2013. The court gave the defendant more time. The court, however, specifically informed the defendant that his experts needed to have their reports ready by July 2, 2013, or the court would consider precluding the expert testimony.

         At the hearing on July 2, 2013, the defendant informed the court that his experts wanted him to see Ruben Gur, a neuropsychiatrist, who was in the process of consulting with Pearlson. The defendant also told the court that he had given Zonana the freedom to withdraw from the case, and that Zonana had decided to withdraw. The court explained that it had given the defendant considerable leeway to contact and secure experts in this case, but, that, with the withdrawal of Zonana, it appeared that the situation would be ‘‘unending.'' The court also told the defendant that it would not delay his trial much further, and that it would not allow an expert to testify unless the state knew what the expert would opine. The court then continued the matter to August 15, 2013, and it clearly told the defendant that this was ‘‘the end time frame for Zonana, Pearlson or Gur to issue a necessary report or indicate to [the court] that no report will be forthcoming . . . . These doctors better have their reports in so that [the prosecutors] can be fairly apprised of their position on it. If they don't have it in, I will take the appropriate action that is necessary, but you are forewarned that I am not going to delay this any further because I can see this coming from left field that we are going to be talking about this at Christmas time-not going to happen.''

         At the August 15, 2013 hearing, the defendant argued a motion for protective order before the court, claiming that he was entitled to the court's ‘‘protection of all matters, material, and work product associated or related to the defendant's role and responsibilities as a self-represented party, including medical examination and communications with experts, arising from the defendant's role as a self-represented party.'' After expressing deep concern regarding the delays in the defendant's case while the defendant dealt with his experts, the court opined that the defendant's motion was disingenuous and that the defendant was ‘‘playing games with the system.'' The court then stated that it was not going to tell the defendant what he could or could not do with his experts in this case, and that Practice Book § 40-31 identified what information was subject to disclosure. The court denied his motion concluding that it lacked merit.

         The defendant then informed the court that he had informed his experts that, because he had an appeal pending related to the denial of his application for a public defender, ‘‘it was inopportune for [him] to continue communications with them until a decision was made on the public defender, or until a decision was made on the protective order.'' The court told the defendant that it saw no reason why the defendant would need a public defender in order to be interviewed, and it concluded that the defendant was employing delay tactics: ‘‘I find that you have acted in a pattern . . . . And I'm going to give you one month. [If] you don't have those professional reports in here one month from today's date, completed, with copies to the state of Connecticut so that the state's attorney can do what analysis they deem appropriate . . . then I will entertain the appropriate motion by the state. . . . So you [have] one month to get them in. If you don't get them in, then I will take the appropriate action. . . . I cannot allow this to go on any longer. There's a clear pattern here. Your intent is to be dilatory and delay everything. Your intent is to interfere with the normal flow of court business and the trial schedule of the court. Your actions are indicative of same. And you're doing so under the guise of protecting your constitutional rights. I just don't agree with you. I see what you're doing.'' On August 26, 2013, the defendant filed an interlocutory appeal challenging the court's denial of his motion for a protective order.[5]

         On September 3, 2013, the court inquired about the defendant's communications with his experts. At this point, the defendant refused to give the court any information regarding his experts, stating that the information was confidential. On September 12, 2013, the defendant again refused to give the court information about his experts and cited the appellate stay that he claimed resulted from his interlocutory appeal of the court's order denying his protective order as a reason to not move ahead in his criminal case. The state thereafter filed a motion to terminate stay pursuant to Practice Book § 61-13 (d), which the trial court granted on October 23, 2013.[6]

         On January 21 and 29, 2014, the trial court heard the defendant's appeal from the decision of the office of the public defender. See footnote 4 of this opinion. The court upheld the decision of the office of the public defender, concluding that the defendant was not indigent.[7]

         On March 12, 2014, the court informed the defendant that he had thirty days to produce any expert reports related to his proposed affirmative defense of mental disease or defect, and it, again, expressed its displeasure with the defendant's delay tactics. The court stated: ‘‘Over the last year and a half, this has been said over and over again, and, to this day, neither the state nor the court has seen anything from the defendant with regard to mental status in this case, even though, clearly, he has been obligated to do so.'' The court continued the matter for one month, to April 11, 2014, and announced that a trial date would be set at that time.

         On April 11, 2014, the defendant gave the state a report from Lothstein, and indicated that the report was based on Lothstein's examination of the defendant in 2010 and on the FMRI from April, 2013. The court then told the parties that jury selection would commence on June 17, 2014.

         Meanwhile, on April 28, 2014, the state filed a motion for psychiatric examination in accordance with Practice Book § 40-19; see footnote 2 of this opinion; which the court heard on April 29, 2014. The state explained that it had received the defendant's report from Lothstein on April 11, 2014, and it reviewed it over the following week and retained its own expert, Justin Schechter, a forensic psychiatrist. The state informed the court that after Schechter had reviewed Lothstein's report, Schechter expressed a desire to examine the defendant before rendering his own opinion on the defendant's defense of mental disease or defect. The state further explained that before it had filed its formal motion for psychiatric examination, it had met with the defendant and attempted to schedule an appointment with the defendant and Schechter, but the defendant objected to an examination, prompting the state to file its formal motion.

         The defendant argued that he wanted time to consider and respond to the state's motion. He also argued that he was ‘‘not refusing the examination . . . [but] was asking the court to be engaged because [he] view[ed] the court . . . as having the responsibility to protect [his] rights as an individual . . . particularly as a self-represented individual.'' The defendant then complained that the state had approximately four years to examine him but that it had not attempted to do so during that time, and he stated that he did not understand the significance of conducting an examination now, in light of the fact that he had been undergoing therapy for approximately fifty-two months.

         The court granted the state's motion for a psychiatric examination, stating: ‘‘You will provide the state's expert with any authorizations that are necessary to complete the work up by the state's expert in this matter. You can make it known to him if you have problems with the scheduling of the examination. He can weigh that for what he deems appropriate. You can, at time of trial, file . . . whatever in limine motion you deem appropriate.'' (Emphasis added.) The court also ordered the defendant to appear at Schechter's office at 5 p.m. that evening.

         On April 30, 2014, the state filed a motion to preclude the defendant from asserting a defense of mental disease or defect and to hold him in contempt, to which he objected. At a May 1, 2014 hearing on this motion, the state informed the court that the defendant had appeared at Schechter's office as ordered, but that he refused to read, have read to him, or sign Schechter's standard consent form. The state argued that the defendant refused to cooperate with Schechter as the court had ordered, that this was nothing more than a delay tactic, and that the court should grant its motion to preclude, as well as find the defendant in contempt.

         The defendant contended that he fully had complied with the court's order by showing up at Schechter's office. He argued that he had not consented to the examination, and, therefore, was not required to sign a consent form, and that he was at Schechter's office because the court had ordered him to be there. He also argued that it was Schechter, not he, who refused to continue with the examination without the form. The defendant asked that the examination be rescheduled and conducted in accordance with the court's order, and that the court review Schechter's consent form before requiring him to sign it.

         The court stated that it specifically had ordered the defendant to provide the necessary authorization to Schechter, and that the defendant's actions were aviolation of the court's order. The court also stated: ‘‘The defendant's action in this case speaks far louder than words. The court has been more than patient . . . in allowing, time after time, a delay of this case at his request for various reasons. The court [previously] set a date for the commencement of selection of a jury in this case, and it's clear to me that the actions of the defendant are intended to continue and delay any progress in this matter. Notwithstanding his words, his actions speak very clearly here. I don't intend to allow anybody to make a joke out of our system. And, while I intend to protect the rights of the defendant, I think the record is replete that I have done so in this particular case.

         ‘‘I also have an obligation [to] the people to get the matter resolved. And I've made my position quite clear. I'm not going to let anybody manipulate or play games with the system. It's as simple as that. And that's exactly what's being done here.

         ‘‘The defendant's objection, therefore, is denied. And the court finds that he has failed to comply with a court order here. I made myself perfectly clear the other day. I not only said that he would report for an examination by Dr. Schechter, but I made it clear that he would sign any authorization that would be provided by Dr. Schechter. . . .

         ‘‘The defendant in this case continues as a self-represented party to assert certain privileges that he has asserted for years by way of argument, motions, and, in this particular case, clearly, I think that assertion was meant to delay all along. He knew what he was doing. He knows what he's doing. He's making a record here, and I think he's just thwarting the process.

         ‘‘I think his actions are quite clear. So, his objection is overruled or denied, if you will. We're done playing games with the system. The motion that was filed by the state for a finding of contempt and for a preclusion of the defense will be denied in part and granted in part. That is to say, the motion for contempt is denied . . . [but] the state's motion to preclude a defense based upon the defendant's mental status is granted in this case.''[8] The court then told the parties to be prepared for jury selection on May 27, 2014, as previously ordered, and that the start of evidence was scheduled to begin on June 17, 2014.[9]

         On appeal, the defendant claims that the court abused its discretion by precluding him, because of a mere ‘‘technical'' violation of the court's order, from raising a defense of mental disease or defect, ultimately violating his constitutional rights to present a defense and to due process of law. In support of his claim, he relies in relevant part on State v. Tutson, supra, 278 Conn. 740. Both parties have asked and agreed that we should employ an abuse of discretion standard of review. We conclude that the court did not abuse its discretion in precluding the defendant's defense as a sanction for his failure to comply with the court's order.

         We initially set forth the legal principles governing our resolution of this claim, as well as our standard of review. ‘‘Practice Book §§ 757 through 761 [now §§ 40-17 through 40-19], inclusive, relate to defenses based on the defendant's mental state. If the defendant intends to rely on such defense or if he intends to introduce expert testimony relating to a mental disease or defect or to any other condition bearing upon the issue whether he had the requisite mental state for the offense charged, he is required to notify the prosecuting authority in writing of such intention and to furnish him with copies of pertinent medical reports. The prosecutor may then move to have the defendant examined by a psychiatrist of the state's choice and in an appropriate case the court may order that the defendant be so examined. In the event of a failure of the defendant to give the required notice, furnish appropriate reports, or submit to the ordered examination, the court may exclude the testimony of any expert witness offered by the defendant on the issue of his mental state.'' State v. Lovelace, 191 Conn. 545, 549, 469 A.2d 391 (1983) (holding court did not abuse its discretion in excluding testimony on issue of defendant's mental state when defendant failed to comply with rules of practice), cert. denied, 465 U.S. 1107, 104 S.Ct. 1613, 80 L.Ed.2d 142 (1984).

         ‘‘Although we recognize that the right of a defendant to present a defense is subject to appropriate supervision by the trial court in accordance with established rules of procedure and evidence . . . we are also mindful that the fair opportunity to establish a defense is a fundamental element of due process of law . . . and that our rules should not be applied mechanistically so as to restrict unreasonably that important right.'' (Citations omitted; internal quotation marks omitted.) State v. Carter, 228 Conn. 412, 426-27, 636 A.2d 821 (1994).

         ‘‘The sixth amendment does not confer the right to present testimony free from the legitimate demands of the adversary system. . . . The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. . . .

         ‘‘We recognize, however, as have most courts addressing the issue, that exclusion of [evidence supporting a defense, such as the testimony of an alibi witness, ] may not be justified in all cases where the defendant has failed to comply with the discovery rules. The trial court must weigh the need for exclusion against the defendant's right to present a defense. . . . The decision is within the sound discretion of the trial court and will turn on the facts of the particular case. Factors which the trial court must consider include: whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.'' (Internal quotation marks omitted.) State v. Tutson, supra, 278 Conn. 740.

         Here, the defendant focuses primarily on the purported reasonableness of his refusal to sign Schechter's consent form and the alleged lack of prejudice that refusal caused to the state because the defendant stated at the May 1, 2014 hearing that he now would sign the form if the court ordered him to do so and submit to the examination. The state contends that it was not an abuse of discretion for the court to preclude the defense of mental disease or defect after looking at the repeated delays caused by the defendant related to his defense and then to consider whether the defendant's refusal to sign the consent form was just another delay in a long line of delay tactics. We agree with the state.

         Pursuant to Practice Book §§ 40-17 and 40-18, the defendant was required to provide written notice of his intent to assert a defense of mental disease or defect and to provide the names of his experts. The defendant also was required to provide the state, within five days of receipt, copies of the reports prepared by any experts whom the defendant would call as witnesses. The state then had five days to file a motion to have the defendant examined by the state's expert. See Practice Book § 40-19.

         In April, 2010, Lothstein examined the defendant. In April, 2013, three years after the defendant was examined by Lothstein, the defendant underwent an FMRI with Pearlson. At an April 23, 2013 status conference, the court asked the defendant if his experts would be issuing reports. The defendant informed the court that Pearlson had performed an FMRI, but that a report would not be available that week. He also stated that Zonana and Lothstein would not be able to issue their reports until after they had reviewed Pearlson's report. The court gave the defendant thirty days to produce the written reports, so that the state would have time to take appropriate action after receipt thereof.

         When those thirty days elapsed, rather than provide the court with any reports, the defendant claimed that he did not want to divulge any information from his experts because he was concerned about ‘‘attorney work product, '' since he was now self-represented and also an attorney. At this point, the court warned the defendant that this was not ‘‘a chess game, '' and it cautioned him that it was concerned about his delay tactics and the state's need for this information in order to prepare for trial.

         In June, 2013, after yet another continuance, the court told the defendant that if the reports of his experts were not ready by July 2, 2013, the court would consider precluding the testimony of his experts. On July 2, 2013, with no reports forthcoming, the court continued the matter to August 15, 2013, but clearly told the defendant that this was ‘‘the end time frame'' for his experts to have their reports ready so that the state could prepare for trial. The court cautioned the defendant that it would not delay this matter any further, and that it did not want this matter continuing through the end of the year.

         Yet, still, additional delays followed. Those delays included, but were not limited to, the defendant's voluntary discharge of Zonana, his filing of an interlocutory appeal regarding his motion for a protective order, his appeal from the decision of the office of the public defender finding that he was not indigent, his repeated assertions to the court that communications with his experts were confidential attorney work product because he was an attorney and was acting as his own attorney in this case, and his citing of an appellate stay as a reason not to give the court any information on his experts or to proceed with his criminal case. In fact, the defendant did not produce Lothstein's written report until April, 2014. Indeed, it is quite clear from this detailed history that the court had been asking for the defendant to produce the reports of his experts and that it granted continuance after continuance to allow him time to produce those reports from April, 2013, until April, 2014, despite its repeated and pointed warnings that it did not want further delays and that the state needed these reports to prepare properly for trial.

         Once the defendant finally produced an expert report, and the state sought to have the defendant examined by Schechter, the defendant then sought time to file a written objection to the state's requested evaluation, and he argued that there would be no worth to a new evaluation at this late date, more than four years after the crimes. Thereafter, despite the court's order to provide Schechter with all necessary authorizations, the defendant refused to read, to have read to him, or to sign Schechter's consent form. Thus, the court's express finding that the defendant sought to continue and delay this matter by employing dilatory tactics that both delayed the proceedings and thwarted the judicial process certainly was not a ‘‘knee jerk reaction'' as the defendant argues on appeal; it is supported by the extensive record in this case. Furthermore, the court repeatedly warned the defendant that his tactics could result in the preclusion of his defense.

         Thus, on the facts of this case, we conclude that the defendant's refusal to read, have read to him, or to sign Schechter's consent form so that an evaluation could be performed was not a mere ‘‘technical'' violation of the court's order, but, rather, it was part of the defendant's campaign to manipulate the system and delay the trial in this matter. Accordingly, the court did not abuse its discretion in precluding the defendant from asserting a defense of mental disease or defect.

         II

         The defendant next claims that the court erroneously concluded that he unequivocally invoked his right to self-representation during certain stages of the pretrial proceedings and that he knowingly, intelligently, and voluntarily waived his right to counsel in violation of the fifth, sixth and fourteen amendments to the United States constitution, and in violation of article first, § 8, of the Connecticut constitution.[10] The state responds: ‘‘[T]he fact that the defendant sought self-representation as an alternative to continued representation by Attorneys Riccio and Moynahan did not preclude the trial court from finding that he had made a clear and unequivocal request for self-representation. Additionally, the trial court's canvass fully complied with what is constitutionally required, and the court did not abuse its discretion in concluding that the defendant's waiver of his right to counsel was knowing, intelligent and voluntary.'' We agree with the state.

         The following additional facts inform our review. Riccio and Moynahan represented the defendant beginning in early 2010. On April 4, 2013, the defendant filed a pro se appearance in lieu of counsel, and the court proceeded, on April 10, and April 12, 2013, to conduct a Faretta hearing. See Faretta v. California, supra, 422 U.S. 806. The defendant explained to the court that he wanted to represent himself because both attorneys previously had sought to withdraw, and that, in retrospect, he thought the court was wrong in not letting them withdraw.[11] He stated that a hostile relationship had developed between them. The defendant then told the court that he would like the assistance of a public defender, although he had not applied for such assistance.

         On the first day of the hearing, April 10, 2013, the court explored the defendant's education and work experience, and it ascertained that the defendant understood the disadvantages and dangers of self-representation. The court further explored the defendant's mental state and the fact that the defendant intended to continue his pursuit of a defense of mental disease or defect. The court inquired as to whether the defendant understood his burden of proof on such a defense and the consequences of the jury accepting that defense.

         When asked by the court if he believed he could properly represent himself, the defendant answered that he really did not feel suited to it and that he would not hire himself. The court found that the defendant's request was ‘‘artfully'' equivocal. The court told the defendant that he would give him time to apply for the services of a public defender, and that, if the defendant did not qualify for such services, the court would continue the Faretta inquiry; it also warned the defendant that if he wanted to represent himself, he must be unequivocal, without any hedging. The court then recessed to permit the defendant to talk with a public defender.

         On April 12, 2013, the public defender informed the court that the defendant did not qualify financially for the services of the office of the public defender. The court then inquired whether the defendant still wanted to represent himself and whether he had anything else to say. The defendant stated: ‘‘You asked a number of questions, and I responded forthrightly to them. I still feel the need to request the court to allow me to exercise my constitutional right to be a self-represented party in this case.'' (Emphasis added.) The court thanked the defendant for his ‘‘clarity, '' and it opined that the defendant's request to represent himself now had become ‘‘pretty unequivocal.'' The court also told the defendant that it would entertain a request for the addition of private counsel if the defendant indicated a desire for such at a later date.

         The court then set forth the following: ‘‘I think you've expressed yourself very clearly here today, and you have been clearly advised of your right to appointed counsel. We have explored that option as best we could under the circumstances. Certainly, I find that you possess the intelligence and capacity to appreciate the consequences of self-representation. You understand the nature and complexity of the proceedings and charges and the permissible punishments that would apply to a case such as this.

         ‘‘And, we have gone through the disadvantages and danger of self-representation. You've expressed yourself rather well in that regard. . . . I'm well aware that you have had a rather stellar legal career . . . . I am convinced at this point in time [however] that it would be in your best interest to have standby counsel in this matter . . . . And at this point in time, I'm going to appoint Mr. Riccio and Mr. Moynahan as your standby counsel in this matter. That's not to say we can't make a change in that if you make a request at a later date based upon your efforts to get other counsel involved in the case.

         ‘‘If your financial circumstances change, and you wish further review in terms of an indigency petition, I would never preclude you from exploring that as well. I want you to be represented appropriately. I think you're a bright, intelligent man who can do a decent job on your own behalf. On the other hand, there's nothing like having guys who really know how the procedure works like those two men standing right next to you right now . . . . '' The defendant objected to the appointment of Riccio and Moynahan as standby counsel, but the court overruled that objection.

         On appeal, the defendant now claims that his invocation of his right to self-representation was equivocal and that he did not knowingly, intelligently, and voluntarily waive his right to counsel. We are not persuaded.

         ‘‘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[12] 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. . . .

         ‘‘The threshold requirement that the defendant clearly and unequivocally invoke his right to proceed pro se 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 pro se 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 omitted; footnote added; internal quotation marks omitted.) State v. Pires, 310 Conn. 222, 230-32, 77 A.3d 87 (2013).

         In this case, a thorough review of the hearing conducted April 10 and April 12, 2013, reveals that the court properly found that the defendant expressed an unequivocal invocation of his right to self-representation, and, further, that the defendant knowingly, intelligently, and voluntarily waived his right to representation by counsel. At the hearing, after the court determined that the defendant did not qualify for the services of the public defender, the court then pointedly asked the defendant if he wanted to represent himself. The defendant explicitly told the court: ‘‘I still feel the need to request the court to allow me to exercise my constitutional right to be a self-represented party in this case.'' (Emphasis added.) The trial court found that this ...


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