Argued
January 14, 2019
Procedural
History
Two
part substitute information charging the defendant, in the
first part, with two counts each of the crimes of risk of
injury to a child and reckless endangerment in the first
degree, and with the crimes of assault in the second degree
with a motor vehicle, reckless driving, operating a motor
vehicle while under the influence of intoxicating liquor or
drugs, operating a motor vehicle with an elevated blood
alcohol content, interfering with an officer and increasing
speed in an attempt to escape or elude a police officer, and,
in the second part, with previously having been convicted of
operating a motor vehicle while under the influence of
intoxicating liquor or drugs, brought to the Superior Court
in the judicial district of New London, geographical area
number ten, where the court, Jongbloed, J., denied
the defendant's application for the appointment of a
public defender; thereafter, the first part of the
information was tried to the jury; verdict and judgment of
guilty; subsequently, the defendant was presented to the
court on a plea of guilty to the second part of the
information; thereafter, the court vacated the conviction of
operating a motor vehicle with an elevated blood alcohol
content, and the defendant appealed to this court;
subsequently, the court, Jongbloed, J., issued an
articulation of its decision. Appeal dismissed in AC
39379; affirmed.
Lisa
J. Steele, assigned counsel, for the appellant (defendant).
Jennifer F. Miller, assistant state's attorney, with
whom, on the brief, were, Michael L. Regan, state's
attorney, and Sarah Bowman, assistant state's attorney,
for the appellee (state).
Prescott, Bright and Norcott, Js.
OPINION
PRESCOTT, J.
The
defendant, Marcus H., appeals from the judgment of
conviction, rendered after a jury trial, of assault in the
second degree with a motor vehicle in violation of General
Statutes § 53a-60d, two counts of risk of injury to a
child in violation of General Statutes § 53-21 (a) (1),
two counts of reckless endangerment in the first degree in
violation of General Statutes § 53a-63, reckless driving
in violation of General Statutes § 14-222, operating a
motor vehicle while under the influence of intoxicating
liquor in violation of General Statutes § 14-227a(a)
(1), operating a motor vehicle with an elevated blood alcohol
content in violation of General Statutes § 14-227a (a)
(2), [1] interfering with an officer in violation
of General Statutes § 53a-167a, and increasing speed in
an attempt to escape or elude a police officer in violation
of General Statutes § 14-223 (b). The defendant claims
on appeal that the court improperly (1) violated his
constitutional right to counsel by denying his application
for the appointment of a public defender and (2) violated his
constitutional right to due process when it did not order,
sua sponte, a judicial marshal to remove his leg shackles
during the trial.[2] We are not persuaded by the
defendant's claims and, accordingly, affirm the judgment
of conviction.[3]
The
jury reasonably could have found the following facts. In the
early morning of May 25, 2014, a motorist driving behind the
defendant observed that his car remained stopped through two
cycles of a stoplight. The motorist pulled over, exited her
car, and approached the passenger side of the defendant's
car. She observed the defendant sleeping or unconscious in
the driver seat and two young girls in car seats in the back
of the car. The motorist woke up the defendant, who then
drove off.
Due to
concern for the children's safety, the motorist called
the police and informed them that she thought that the
defendant was intoxicated. On the basis of the information
provided by the motorist, the police station issued a
"be on the lookout" report over their radio system
for a black Acura with a black male operator and two females
in the back seat. Officer Jason Pudvah saw a car that matched
the description from the report idling at a nearby gas
station. Pudvah approached the car and observed the defendant
slumped over in the driver's seat and his two and four
year old daughters in the backseat. Pudvah knocked on the
window and spoke with the defendant. After requesting the
defendant's information, Pudvah returned to his vehicle.
While Pudvah was speaking with police dispatch, the defendant
drove off at a high rate of speed.
Pudvah
initially pursued the defendant but stopped due to fear for
the children's safety and in the hope that the defendant
would slow down. Further down the road, the defendant lost
control of his car and crashed into a telephone pole. The car
became airborne and landed upside down in a residential
swimming pool. As a result of the accident, the
defendant's younger daughter suffered serious injuries to
her arm and his older daughter sustained an ankle injury.
After
the trial, during which the defendant represented himself, a
jury found the defendant guilty of all charges, and the court
rendered judgment in accordance with the verdict. Thereafter,
the defendant pleaded guilty to being a subsequent offender
to operating a motor vehicle while under the influence of
intoxicating liquor in violation of § 14-227a (g) (2).
The trial court, Jongbloed, J., sentenced the
defendant to a total effective term of twenty-three years of
incarceration, execution suspended after fourteen and
one-half years, followed by five years of probation with
special conditions. This appeal followed. Additional facts
will be set forth as necessary.
I
The
defendant claims that the trial court violated his
constitutional right to counsel and, therefore, to due
process, by denying his application for the appointment of a
public defender. We disagree.
The
following additional facts are relevant to this claim. On the
first day of jury selection on February 18, 2016,
[4] the
defendant requested a continuance to replace his private
attorney, Attorney John Williams, with another private
attorney. Specifically, he claimed that he had a dispute with
Attorney Williams regarding payment of attorney's fees,
and he did not believe that Attorney Williams would represent
him properly. Attorney Williams informed the court that he
had "told [the defendant] expressly and more than once
that under no circumstances would his [lack of payment] in
any way, shape, or form affect [his] commitment to [the
defendant]." The court denied the motion for a
continuance and stated that "[Attorney] Williams is
going to honor his professional obligations under all
circumstances and represent [the defendant] to the best of
his ability."
After
the court denied the motion for a continuance, the defendant
requested to represent himself. The court canvassed the
defendant regarding his decision to represent himself,
including inquiring as to whether he understood the dangers
of self-representation. After concluding that the defendant
knowingly and voluntarily waived his right to counsel, the
court granted his request. The court then appointed Attorney
Williams as the defendant's standby counsel. Jury
selection thereafter commenced, with the defendant
representing himself. That afternoon, the defendant applied
for a public defender.
The
next day, the court held a hearing on the defendant's
request for appointment of a public defender. The assistant
state's attorney, the defendant, Attorney Williams, and
Attorney Sean Kelly from the public defender's office
were present at the hearing. Attorney Kelly stated that,
after reviewing the defendant's application, the
defendant was not eligible for their services and that the
Office of the Public Defender did not seek to be appointed in
the case.
The
defendant argued that he was financially eligible for the
services of a public defender. Specifically, he argued that,
although he was able to post bonds and had retained private
counsel in the past, his financial situation had changed so
that he had "the right to free counsel ... on the
state's dollar." Attorney Kelly stated that the
public defender's office considers many factors when
making a decision regarding a defendant's eligibility,
including whether the defendant is receiving support from
others. After evaluating the defendant's application, the
public defender's office concluded that his circumstances
did not warrant appointment of a public defender.
The
defendant initially posted a $25, 000 surety bond. His bond
subsequently was increased to a $75, 000 surety bond, which
he also posted. Therefore, the defendant was not in custody
and was living with his mother at the time he applied for a
public defender. Attorney Kelly noted that the
defendant's ability to post bond and to obtain private
counsel "shows a pattern where, if there's money
needed, money comes . . . ." The defendant himself
stated that the money from his initial payment to Attorney
Williams came from his mother. Attorney Kelly also noted that
this was the second private attorney the defendant had
retained in the case and that the defendant had posted
significant bonds on two prior occasions. These facts taken
together led the public defender's office to conclude
that the defendant was not indigent.
The
defendant responded to Attorney Kelly by stating that he
still owed money to both of his private attorneys and had
balances on both bonds. Finally, he restated that he believed
that Attorney Williams, who was present and available to
represent him, would be ineffective. At the conclusion of the
hearing, the trial court denied the defendant's request.
In denying the defendant's request, the court stated:
"Under all the circumstances, [the public defender's
office is] not seeking to be appointed. I am not going to
appoint the public defender's office to represent you.
We'll continue your appearance pro se with standby
counsel by Attorney Williams."[5] The defendant continued to
trial representing himself, with the assistance of Attorney
Williams as standby counsel.
We
begin with the relevant law and standard of review that
govern this claim. Practice Book § 37-6 (a) provides in
relevant part: "If the judicial authority determines
after investigation by the public defender that the defendant
is indigent, the judicial authority may designate the public
defender or a special public defender to represent the
defendant .... If the public defender or his or her office
determines that a defendant is not eligible to receive the
services of a public defender, the defendant may appeal the
public defender's decision to the judicial authority in
accordance with General Statutes ...