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State v. Acampora

Court of Appeals of Connecticut

September 5, 2017

STATE OF CONNECTICUT
v.
JOSEPH C. ACAMPORA, JR.

          Argued May 22, 2017

          Mary A. Beattie, assigned counsel, for the appellant (defendant).

          Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and James R. Dinnan, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Alvord and Bear, Js.

         Syllabus

         Convicted of the crimes of assault of a disabled person in the third degree and disorderly conduct, the defendant appealed to this court. He claimed, inter alia, that the trial court violated his constitutional right to counsel when it permitted him to represent himself at arraignment and during plea negotiations without obtaining a valid waiver of his right to counsel.

         Held:

1. The trial court did not abuse its discretion when it determined that the defendant knowingly, intelligently and voluntarily waived his right to counsel and invoked his right to self-representation: that court had no duty to canvass the defendant concerning his waiver of the right to counsel and his invocation of the right to self-representation until he clearly and unequivocally invoked his right to self-representation, which he did not do at arraignment, and although the defendant clearly and unambiguously invoked his right to self-representation at a pretrial hearing, the court canvassed the defendant that same day; moreover, to the extent that the defendant claimed that the court violated his right to counsel by not canvassing him prior to the date of that hearing, this court declined to review that claim, the defendant having raised the claim for the first time in his reply brief and there having been no exceptional circumstances to warrant a consideration of the claim.
2. The defendant could not prevail on his claim that the court's canvass at the pretrial hearing was constitutionally inadequate because the court did not explain in sufficient detail the nature of the charges against the defendant and did not advise him of specific dangers and disadvantages of self-representation: it was not necessary that the defendant be specifically informed of the particular elements of the crimes he was charged with before being permitted to waive counsel and to proceed pro se, as the court advised the defendant of the statutory names of the charges pending against him as well as the penalties associated with those charges, the elements of which were relatively straightforward and aligned with the statutory names of the offenses, and the court reasonably could have concluded that the defendant understood the nature of the charges against him sufficiently to render his waiver of the right to counsel knowing and intelligent; moreover, during its canvass, the court explored the defendant's lack of familiarity with substantive law and procedural rules, and alerted him to the fact that he would be expected to educate himself on those areas of the law and procedure and to comply with the same rules that govern attorneys during trial, and that discussion sufficiently apprised the defendant of the general dangers and disadvantages associated with self-representation, as opposed to representation by an attorney trained in the law.
3. The defendant could not prevail on his unpreserved claim that the trial court violated his right to present a defense by improperly denying his motion to open the evidence so that he could present the testimony of an objective third party witness who would have been able to directly attack the credibility of the victim as to whether an ambulance had been dispatched to his residence on the date of the incident at issue; the evidence that the defendant sought to admit would not have been admissible in his case-in-chief, as it was a voice mail message that constituted inadmissible hearsay, the defendant did not identify any exception to the hearsay rule that would have permitted its admission, and even if the court interpreted the defendant's statements about the voice mail as a request to open the evidence, the testimony about whether an ambulance was dispatched to the victim's residence related to a collateral matter and not a material issue, and the impeachment of the victim's testimony on a collateral matter through extrinsic evidence was not permitted under our rules of evidence.

         Procedural History

         Substitute information charging the defendant with the crimes of assault of a disabled person in the third degree, disorderly conduct and interfering with an emergency call, brought to the Superior Court in the judicial district of New Haven, geographical area number seven, and tried to the jury before Klatt, J.; thereafter, the court denied the defendant's motion to open the evidence; verdict and judgment of guilty of assault of a disabled person in the third degree and disorderly conduct, from which the defendant appealed to this court. Affirmed.

          OPINION

          ALVORD, J.

         The defendant, Joseph C. Acampora, Jr., appeals from the judgment of conviction, rendered after a jury trial, of one count of assault of a disabled person in the third degree in violation of General Statutes § 53a-61a and one count of disorderly conduct in violation of General Statutes § 53a-182 (a) (1). The defendant was found not guilty of interfering with an emergency call in violation of General Statutes § 53a-183b. The defendant represented himself at trial. On appeal, the defendant claims that the trial court (1) violated his right to counsel under the sixth and fourteenth amendments to the United States constitution when it permitted him to represent himself without obtaining a valid waiver of his right to counsel and (2) violated his right to present a defense, as guaranteed by the sixth and fourteenth amendments to the United States constitution, when it denied his motion to open the evidence. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The defendant and the victim, Anthony Toth, are brothers. The victim has cerebral palsy. In August, 2011, they shared an apartment in a multifamily house with their mother. At approximately 11:40 a.m. on August 3, 2011, the defendant entered the victim's bedroom and grabbed him. The defendant accused the victim's friend of putting a hole in the windshield of his van when they were setting off fireworks the night before. The defendant slapped and punched the victim in the face and head, and dragged him about the apartment. When the victim grabbed his phone, the defendant took it from him and threw it, causing the battery to fall out. Thereafter, the defendant called the Wallingford Police Department to report that his van had been vandalized, and the victim called the police to report the assault after he located and replaced his phone's battery.

         At approximately noon that same day, Officer James Onofrio was dispatched to the defendant and the victim's residence in response to the defendant's vehicle vandalism complaint. When Onofrio arrived, he met with the defendant outside and examined the defendant's damaged windshield. The defendant explained that he believed that the victim's friend had damaged the windshield with a firework the night before, but he admitted that he had no proof of who caused the damage. While talking to the defendant, police dispatch informed Onofrio of the victim's assault complaint. The defendant informed Onofrio that he needed to leave to go to a doctor, and Onofrio obliged because he did not know, at that time, that the defendant was the subject of the assault complaint.

         Onofrio met the victim in his apartment. The victim had a cut on his nose and blood on his nose, neck, and arm, and he explained to Onofrio that the defendant had assaulted him earlier that day because he believed that the victim's friend damaged his van's windshield. Consistent with the victim's complaint, a neighbor informed Onofrio that approximately fifteen minutes before he had arrived in response to the defendant's vehicle vandalism complaint, she had heard the defendant yelling and ‘‘loud banging and a lot of commotion'' coming from the defendant and victim's apartment.

         Thereafter, the defendant was charged with assault of a disabled person in the third degree, disorderly conduct, and interfering with an emergency call. After a jury trial, at which the defendant represented himself, the defendant was found guilty of assault of a disabled person in the third degree and disorderly conduct. The defendant was found not guilty of interfering with an emergency call. The court sentenced the defendant to a total effective sentence of one year of imprisonment. This appeal followed.

         I

         We begin with the defendant's claim that his right to counsel was violated when the court permitted him to represent himself without obtaining a valid waiver of his right to counsel. Specifically, the defendant claims that the court improperly permitted him to represent himself at arraignment and during plea negotiations without canvassing him concerning his waiver of his right to counsel. The defendant also claims that the canvass performed by the court at a pretrial proceeding on February 23, 2012, was constitutionally inadequate. We reject both of these claims.

         The following additional facts are relevant to these claims. On September 14, 2011, the defendant appeared for arraignment unrepresented by counsel. Because the case involved allegations of domestic violence, a discussion was held concerning whether family services, part of the Court Support Services Division, was going to be involved in the case, whether a protective order needed to be put in place, and what the conditions of that order should be because the defendant and the victim lived together. The defendant declined the assistance of family services, and the court, Scarpellino, J., ultimately agreed to permit the defendant to return to the apartment that he shared with the victim. The court continued the matter for one week so that family services could contact the victim and obtain more information. The following week, on September 21, 2011, family services indicated that it had still been unable to contact the victim, and the court granted another continuance.

         Between September 28, 2011, and November 29, 2011, the defendant requested and received four continuances so that he could retain counsel. At the hearing on November 29, 2011, the following colloquy occurred:

‘‘[The Prosecutor]: [The defendant] is asking for a continuance to hire an attorney.
‘‘[The Defendant]: Still going.
‘‘The Court: One week.
‘‘[The Defendant]: One week.
‘‘The Court: Well, how many times do you want me to continue? You know-
‘‘[The Defendant]: -well, listen, I'm not the one pursuing the case. You guys are coming after me, so-
‘‘The Court: Yeah, well-
‘‘[The Defendant]: -I mean-
‘‘The Court: -you can get a public defender-
‘‘[The Defendant]: -I don't-I'll represent myself, Your Honor.
‘‘The Court: Did you apply for a public defender?
‘‘[The Defendant]: I, I got too much unemployment. I get just enough not to get it, and-
‘‘The Court: All right. What was the offer on this?
‘‘[The Prosecutor]: There hasn't been one because he wanted to retain the services of counsel.
‘‘The Court: Once you tell the prosecutor you want a lawyer, the prosecutor is going to-
‘‘[The Defendant]: Well, no. I did not tell him that.
‘‘The Court: All right.
‘‘[The Defendant]: They told me to get a lawyer, Your Honor. So-
‘‘The Court: All right, well, because, so, so, then give him-send it back and then give him an offer.''

         Thereafter, the defendant interjected that the case was ‘‘ridiculous . . . .'' The court explained to the defendant that ‘‘the charge that's there . . . carries a mandatory year in jail. You, you need to get an attorney . . . .'' The defendant proceeded to argue about why the case was ‘‘based on a bunch of crap'' and stated: ‘‘And now, you-I, I, -if you want a big trial thing about it, then I'd rather represent myself and I'll do my own investigation. . . . Because, honestly, from what I see of attorneys, I believe I can do a better job myself.'' The court said, ‘‘All right, '' and the defendant asked, ‘‘So, we'll give it one week again?'' The court instructed the defendant to talk to the prosecutor about his case first. When the defendant's case was recalled, the prosecutor indicated that he was unable to have a ‘‘cogent conversation'' with the defendant and stated that the defendant ‘‘really needs an attorney to help him out.'' The court therefore granted the defendant's motion for a continuance.

         On December 13, 2011, after the defendant's case was called, the prosecutor noted that ‘‘[t]his is a matter that's been continued since September 14 [2011] at the request of the defendant each time to hire counsel. The state's made an offer.'' The court asked the defendant how his efforts to retain counsel were proceeding. The defendant responded: ‘‘Saving up [for an attorney]. I got, like, $500 saved, and the lowest I got they want is, like, $800. So, I'm unemployed. So, I've been unemployed. So, plus, I pay my rent. I mean, I only get so much from unemployment.'' The court agreed to continue the case so that the defendant could continue his efforts to retain counsel. Between December 29, 2011, and February 16, 2012, the court continued the case five additional times so that the defendant could retain counsel.[1]

         On February 23, 2012, the state explained to the court, McNamara, J., that the defendant's case had been continued several times so that the defendant could retain counsel. The court asked the defendant whether he had in fact retained an attorney. The defendant replied: ‘‘No. Um, well, I'm on unemployment. The person was my brother. I called the police. I don't believe I need a lawyer. I don't want a lawyer. I don't have the money to afford a lawyer.'' When the court mentioned Judge Scarpellino, the defendant interjected: ‘‘I asked him to go on the jury trial.'' The court asked the defendant whether he had asked for more time to retain an attorney, and the defendant indicated that he had. The defendant explained that he had been saving money over the last several weeks for an attorney, and he stated that ‘‘if I need to represent myself, I will, Your Honor, I will. . . . I don't believe I really need to . . . sacrifice . . . not paying my rent to hire an attorney for . . . for a junk case.''

         The court engaged in a discussion with the defendant concerning his attempts to retain counsel. The defendant stated: ‘‘They offered me forty-five days, which I will not accept. So, the next move would have to be trial. So, if we can start picking and maybe I'll have to-if I lose trial, I'll . . . maybe I'll . . . I'll save my money for the appeal.'' The court asked the state whether an offer had been made, and the state responded that one had been made in December, 2011. The defendant confirmed that he was rejecting that offer. The court stated that it would place the case on the firm trial list and canvassed the defendant concerning his waiver of the right to counsel and invocation of his right to self-representation. After completing its canvass, the court found, inter alia, that the defendant knowingly, intelligently, and voluntarily waived his right to counsel.

         Having reviewed the relevant factual and procedural history, we now turn to the legal principles that guide our analysis of the defendant's claims. The sixth amendment to the United States constitution, as made applicable to the states by the fourteenth amendment, embodies the right to counsel at all critical stages of a criminal prosecution, including arraignment[2] and plea negotiations. See State v. Braswell, 318 Conn. 815, 827, 123 A.3d 835 (2015); State v. Pires, 310 Conn. 222, 230, 77 A.3d 87 (2013); see also Gonzalez v. Commissioner of Correction, 308 Conn. 463, 474-84, 68 A.3d 624 (defendant's arraignment was critical stage because of presentence confinement issues that arose), cert. denied sub nom. Dzurenda v. Gonzalez, U.S., 134 S.Ct. 639, 187 L.Ed.2d 445 (2013); Mahon v. Commissioner of Correction, 157 Conn.App. 246, 253, 116 A.3d 331 (‘‘[p]retrial negotiations implicating the decision of whether to plead guilty [are] a critical stage in criminal proceedings'' [internal quotation marks omitted]), cert. denied, 317 Conn. 917, 117 A.3d 855 (2015); accord Davis v. Greiner, 428 F.3d 81, 87 (2d Cir. 2005) (‘‘[i]t is well settled a defendant's Sixth Amendment right to counsel extends to plea negotiations'').

         ‘‘Embedded within the sixth amendment right to assistance of counsel is the defendant's right to elect to represent himself, when such election is voluntary and intelligent. . . . [T]he right to counsel and the right to self-representation present mutually exclusive alternatives. . . . Although both rights are constitutionally protected, a defendant must choose between the two. . . . We require a defendant to clearly and unequivocally assert his right to self-representation because the right, unlike the right to the assistance of counsel, protects interests other than providing a fair trial, such as the defendant's interest in personal autonomy. . . . Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel. . . . Once the right has been invoked, the trial court must canvass the defendant to determine if the defendant's invocation of the right, and simultaneous waiver of his right to the assistance of counsel, is voluntary and intelligent.'' (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Braswell, supra, 318 Conn. 827-28.

         ‘‘In the absence of a clear and unequivocal assertion of the right to self-representation [however], 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.'' (Internal quotation marks omitted.) State v. Pires, supra, 310 Conn. 231. ‘‘In the exercise of that discretion, the trial court must weigh into the balance its obligation to indulge in every reasonable presumption against waiver of the right to counsel.'' (Internal quotation marks omitted.) State v. Carter, 200 Conn. 607, 614, 513 A.2d 47 (1986).

         ‘‘We ordinarily review for abuse of discretion a trial court's determination, made after a canvass . . . that a defendant has knowingly and voluntarily waived his right to counsel. . . . In cases . . . where the defendant claims that the trial court improperly failed to exercise that discretion by canvassing him after he clearly and unequivocally invoked his right to represent himself . . . whether the defendant's request was clear and unequivocal presents a mixed question of law and fact, over which . . . our review is plenary.'' (Citation omitted; internal quotation marks omitted.) State v. Jordan, 305 Conn. 1, 13-14, 44 A.3d 794 (2012).

         A

         The defendant first claims that the court deprived him of his right to counsel when it permitted him to represent himself at arraignment and during plea negotiations without being canvassed concerning his waiver of the right to counsel and invocation of the right to self-representation. That is, the defendant contends that a trial court's duty to canvass is triggered whenever a defendant appears at a critical stage of the proceeding unrepresented by counsel. The defendant's argument is predicated on the assumption that ‘‘[t]he right to self-representation is not triggered until the court has canvassed a defendant in accordance with Practice Book § 44-3 and the defendant has effectively waived the right to counsel.'' The defendant misapprehends our jurisprudence concerning the invocation of the right to self-representation and a trial court's duty to canvass.

         ‘‘State and federal courts consistently have discussed the right to self-representation in terms of invoking or asserting it . . . and have concluded that there can be no infringement of the right to self-representation in the absence of a defendant's proper assertion of that right. . . . 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.'' (Emphasis added; internal quotation marks omitted.) State v. Pires, supra, 310 Conn. 231.

         This constitutional rule ‘‘is grounded in the policy and practical consideration that, such advices [about the right to self-representation] might suggest to the average defendant that he could in fact adequately represent himself and does not need an attorney, and it would be fundamentally unwise to impose a requirement to advise of the self-representation procedure which, if opted for by the defendant, is likely to be to no one's benefit. . . . It also is consistent with well settled Connecticut law, that, [i]n 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, because the right of self-representation, unlike the right to counsel, is not a critical aspect of a fair trial, but instead affords protection to the defendant's interest in personal autonomy.'' (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 248.

         Accordingly, the court had no duty to canvass the defendant concerning his waiver of the right to counsel and his invocation of the right to self-representation until he clearly and unequivocally invoked his right to self-representation.

         B

         We next address whether and when the defendant invoked his right to self-representation. It is undisputed that the defendant did not clearly and unambiguously invoke his right to counsel at arraignment. It is also undisputed that the defendant clearly and unambiguously invoked his right to self-representation on February 23, 2012, and that the court canvassed the defendant that same day. To the extent that the defendant further claims that the court violated his right to counsel by not canvassing him prior to February 23, 2012, however, we conclude that such a claim is unreviewable.

         In his opening brief, the defendant argued only that the court violated his right to counsel by permitting him to represent himself at critical stages of the proceedings without canvassing him as to his waiver of his right to counsel and invocation of his right to self-representation. In its brief, the state responded that the court was not required to canvass the defendant until he clearly and unequivocally invoked his right to self-representation. The state further observed: ‘‘The record reveals, and the defendant does not assert otherwise, that he did not clearly and unequivocally invoke his right to self-representation until February 23, 2012.'' The state did not thereafter address whether the defendant clearly and unequivocally invoked his right to self-representation prior to February 23, 2012. In his reply brief, the defendant continued to maintain that because it was ‘‘obvious'' that he was representing himself at arraignment and during plea negotiations, the court was required to canvass him. In the alternative, the defendant argued that, even if he was required to clearly and unequivocally invoke his right to self-representation, he did so on November 29, 2011, and February 23, 2012.[3]The defendant claimed therefore that the court violated his right to counsel by not canvassing him before he engaged in plea negotiations with the state on November 29, 2011, and rejected the state's plea offer on February 23, 2012.

         ‘‘It is axiomatic that a party may not raise an issue for the first time on appeal in its reply brief. . . . Our practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant's reply brief is to respond to the arguments and authority presented in the appellee's brief, that function does not include raising an entirely new claim of error.'' (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 197, 982 A.2d 620 (2009). Exceptional circumstances may persuade us to consider an issue raised for the first time in a reply brief. See, e.g., State v. McIver, 201 Conn. 559, 563, 518 A.2d 1368 (1986) (permitting defendant to raise issue for first time in reply brief because record adequately supported claim defendant had been deprived of fundamental constitutional right and fair trial); see also Curry v. Burns, 225 Conn. 782, 789 n.2, 626 A.2d 719 (1993) (permitting appellant in reply brief to join amicus curiae request to overrule prior case law); 37 Huntington Street, H, LLC v. Hartford, 62 Conn.App. 586, 597 n.17, 772 A.2d 633 (addressing issue raised in reply brief where appellant had no earlier opportunity to respond to issues raised in briefs filed by amici curiae), cert. denied, 256 Conn. 914, 772 A.2d 1127 (2001).

         No exceptional circumstances exist that persuade us to consider this issue, which was raised for the first time in a reply brief. Therefore, we decline to review the defendant's belated claim that he clearly and unequivocally invoked his right to self-representation on November 29, 2011, and that the court violated his right to counsel by not canvassing him on that date.

         C

         The defendant next claims that the court's canvass on February 23, 2012, was constitutionally inadequate because the court failed to explain to him in sufficient detail the nature of the charges and to advise him of specific dangers and disadvantages of self-representation. We disagree.

         The following additional facts are relevant to the defendant's claim. On February 23, 2012, the court, McNamara, J., canvassed the defendant concerning his waiver of his right to counsel and invocation of his right to self-representation. In relevant part, the court engaged in ...


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