Opinion
No. CR97-0169518
November 23, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S REQUEST FOR SELF-REPRESENTATION
The defendant, Maurice Flanagan, was convicted of the crime of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-48(a). Following his conviction, the defendant appealed to the Appellate Court. In that appeal, the defendant raised, inter alia, that the trial court had violated his sixth amendment right to self-representation by: (1) not conducting a canvass pursuant to Practice Book § 44-3; and (2) applying an incorrect legal standard to his request to proceed pro se. State v. Flanagan, 93 Conn.App. 458, 468, 890 A.2d 123 (2006). The request for self-representation was made at the close of the state's case and prior to the defendant's case-in-chief.
The Appellate Court affirmed the judgment of conviction. Id., 479. The Court held that the lack of a canvass of the defendant pursuant to Practice Book § 44-3 by the trial court was not improper because the defendant had not made a clear and unequivocal assertion of his right to self-representation. Id., 474. Additionally, the Appellate Court concluded that the defendant's request for self-representation was untimely and that no exceptional circumstances existed to permit the defendant to discharge his counsel at that point in the trial. Id., 478-79. One judge dissented from this decision.
Based upon a motion by the defendant, the Appellate Court heard the defendant's appellate issues en banc. Subsequently, on reconsideration, the Appellate Court concluded that the defendant's request to represent himself was not clear and unequivocal and, therefore, the trial court had not improperly failed to canvass the defendant in accordance with Practice Book § 44-3. State v. Flanagan, 102 Conn.App. 105, 131-32, 925 A.2d 385 (2007). Four judges dissented in two opinions. The defendant petitioned for certification to appeal from the Appellate Court's decision and the Supreme Court granted certification. State v. Flanagan, 284 Conn. 922, 933 A.2d 725 (2007).
The issue on certification to the Supreme Court was whether the defendant's constitutional right to self-representation was violated. Id. The Court concluded that the defendant clearly and unequivocally invoked his right to self-representation, reversing the Appellate Court's holding on this issue. State v. Flanagan, 293 Conn. 406, 422, 978 A.2d 64 (2009).
The Supreme Court considered the trial court's use of the "exceptional circumstances" test in determining whether the defendant's request to proceed self-represented was untimely and prejudicial to the state. Additionally, the Court reviewed the defendant's claim that Practice Book § 44-3, which provides that a defendant shall be permitted to represent himself at any stage in the proceedings, negates any timeliness requirement. The Supreme Court concluded that neither the state's nor the defendant's proposed standard applies to a mid-trial request to proceed pro se. Id., 428. In reaching this conclusion, the Court discussed the appropriateness of the "exceptional circumstances" test when a defendant seeks to discharge his counsel and have new counsel appointed on the eve of trial or midtrial. Id., 428-29.
The Supreme Court adopted the balancing test employed by the Second Circuit in the case of Williams v. Bartlett, 44 F.3d 95 (2d Cir. 1994), in evaluating whether the defendant made his request for self-representation "in untimely fashion such that granting it would disrupt the proceedings . . ." (Internal quotation marks omitted.) State v. Flanagan, supra, 293 Conn. 432-33.
The Court held that "when a defendant clearly and unequivocally has invoked his right to self-representation after the trial has begun, the trial court must consider: (1) the defendant's reasons for the self-representation request; (2) the quality of the defendant's counsel; and (3) the defendant's prior proclivity to substitute counsel." Id., 433.
If, after a thorough consideration of these factors, the trial court determines, in its discretion, that the balance weighs in favor of the defendant's interest in self-representation, the court must then proceed to canvass the defendant in accordance with Practice Book § 44-3 to ensure that the defendant's choice to proceed pro se has been made in a knowing and intelligent fashion. If, on the other hand, the court determines, on the basis of those criteria, that the potential disruption of the proceedings already in progress outweighs the defendant's interest in self-representation, then the court should deny the defendant's request and need not engage in a § 44-3 canvass.
Id.
Since this balancing test was not applied by the trial court (Shortall, J.) when it denied the defendant's request to proceed pro se, the Supreme Court remanded the case to the trial court to apply the appropriate criteria as set forth in the opinion and to determine if it was required to canvas the defendant in accordance with Practice Book § 44-3. Id., 434.
Procedural History
The decision in State v. Flanagan, 293 Conn. 406, 978 A.2d 64 (2009), was officially released on September 15, 2009. Subsequent to the release of the Supreme Court decision, the proceedings on remand were assigned to the trial judge, the Honorable Joseph Shortall. While the matter had been on appeal, Judge Shortall had reached the status of judge trial referee. On January 13, 2010, Judge Shortall filed a notice recusing himself from the case because the proceedings on remand would involve a review of his own actions in the trial and, therefore, would violate Code of Judicial Conduct Canon 3(c)(1).
The presiding criminal judge for the New Britain Judicial District, the Honorable Hillary Strackbein, assigned this matter to the undersigned judge. On January 4, 2010, January 25, 2010, February 8, 2010 and April 5, 2010, status conferences were conducted with the parties. Following these status conferences, the matter was scheduled for hearing and legal argument. Additionally, to avoid any potential conflict, the defendant's trial counsel, John Stawicki, was allowed to withdraw from the remand hearing and Attorney Jeffrey Kestenband was appointed to represent the defendant.
This court held the hearing on April 6, 2010. The defendant's memorandum of law was filed on July 2, 2010 and the State of Connecticut's memorandum of law was filed on August 6, 2010. This court has reviewed the transcripts of the trial and jury selection for the matter of State v. Flanagan tried before Judge Shortall. The court heard oral arguments from all parties on August 30, 2010.
Analysis
The scope of this court's analysis and decision is based upon a review of the factual circumstances of the defendant's request at trial, the parties' presentation at the hearing and oral argument, the court's review of the trial transcripts, and the analysis directed by the Supreme Court.
The federal constitution has been interpreted to afford a criminal defendant the right to forgo the assistance of counsel and to choose to represent himself or herself at trial. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "The Connecticut constitution is more explicit, stating directly that [i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . Conn. Const., art. I, § 8. [The Connecticut Supreme Court repeatedly has] interpreted this language to establish an independent state constitutional guarantee of the right to self-representation." (Internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 507, 973 A.2d 627 (2009).
However, "[a] defendant's right to represent himself or herself, after a clear and unequivocal request to do so, is not unlimited." State v. Thompson, 122 Conn.App. 20, 37, 996 A.2d 1218, cert. granted on other grounds, 298 Conn. 906, 3 A.3d 73 (2010). As previously indicated, our Supreme Court has established that "when a defendant clearly and unequivocally has invoked his right to self-representation after the trial has begun, the trial court must consider: (1) the defendant's reasons for the self-representation request; (2) the quality of the defendant's counsel; and (3) the defendant's prior proclivity to substitute counsel." (Internal quotation marks omitted.) Id., 38.
This court has considered these three factors established by the Supreme Court.
I. The Defendant's Reasons For The Self-Representation Request
The defendant has presented that the reason for requesting self-representation was to call witnesses in the defendant's case-in-chief. This reason was presented to Judge Shortall during the trial. Particularly, the defendant wanted to call three witnesses: Shannon Lamar, Fernando Rivera and "Teely."
The following additional facts and procedural history are necessary to address the defendant's claim and reason for self-representation.
The defendant was charged in the first trial with capital felony in violation of Connecticut General Statutes §§ 53a-54b(8) and 53a-8; two counts of murder in violation of General Statutes §§ 53a-54a(a) and 53a-8; two counts of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a(a), 53a-8 and 53a-49(a)(2); one count of conspiracy to commit murder in violation of General Statutes §§ 53a-54a(a) and 53a-48(a); and one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-48(a). The defendant was first presented for trial on January 5, 1999. He was represented by a special public defender, Herman Woodard. The defendant was convicted by a jury of all counts, except capital felony. The case was reversed on appeal on an unrelated issue; State v. Cummings, 67 Conn.App. 734, 789 A.2d 1063 (2002); and transferred to the New Britain Judicial District on May 15, 2002. John Stawicki was appointed to represent the defendant.
At the second trial, the defendant was charged with two counts of murder, General Statutes §§ 53a-54a(a) and 53a-8; two counts of criminal attempt to commit murder, General Statutes §§ 53a-54a(a), 53a-8 and 53a-49(a)(2); one count of conspiracy to commit murder, General Statutes §§ 53a-54a(a) and 53a-48(a); and one count of conspiracy to commit assault in the first degree, General Statutes §§ 53a-59(a)(1) and 53a-48(a). The defendant was convicted only of conspiracy to commit assault in the first degree and acquitted on the remaining charges. The aforementioned Appellate and Supreme Court decisions followed that conviction. It is from this second trial that the issues before this court originate.
The underlying factual allegations are that on May 5, 1994, Chanito Roman, a Los Solidos member, was killed in a drive-by shooting. The Los Solidos members believed that a rival organization, the Latin Kings, were responsible for Roman's death. In light of that belief, the statewide leader of the Los Solidos, George Rivera, ordered members of that organization to kill two members of the Latin Kings for every Los Solidos member killed by a Latin King. On May 14, 1994, Walter Rodriguez, Reinaldo Mercado and Latin King members Patrick Gannon and Hector Rodriguez were in a vehicle stopped at the intersection of Overlook and Selander Streets in New Britain. A vehicle occupied by members of the Los Solidos opened gunfire into the vehicle occupied by members of the Latin Kings. Latin King members Patrick Gannon and Hector Rodriguez were killed. Walter Rodriguez and Reinaldo Mercado were injured. The defendant was one of the individuals arrested for the incident.
The defendant was convicted at the first trial and received a total effective sentence of one hundred and forty years imprisonment.
With this history, at the second trial, the defendant and Attorney Stawicki discussed presenting witnesses in the defense case-in-chief. The defendant and his counsel disagreed on the decision whether to call witnesses.
Mr. Flanagan stated on March 18, 2003:
THE DEFENDANT: Well, my point of view is that I feel in my last trial, my attorney rested and I was found guilty. And I feel that what he's explained to me as his strategy is too narrow and it doesn't leave any room for any other — for the jury to make any other options than the one option. And if they don't see it in this particular way, then I'm pretty much going to be found guilty. And I feel to get twelve people to see something one way is kind of difficult. And I believe that through calling other witnesses, we can give them other options to look at the case from a different angle. So, if they don't believe what he's trying to put forward they could see it as another way. I mean, to me it's like trying to protect your King with a pawn. And the pawn can only protect coming straight on. And that's what he wants. He wants the jury to come directly. If they don't come this path, or they choose to come from the right or the left or from behind, he's already told them. I'm found guilty.
(March 18, 2003 Transcript, p. 2.)
The defendant further indicated the basis for the disagreement with his counsel:
THE DEFENDANT: I understand. See like, one of the disagreements we have is he doesn't want to call any witnesses. Now, there's a witness that's a FBI informant that places me in a totally different city. And we have a disagreement about calling this individual. So, I mean, to me, that doesn't make any sense but to him, whatever his reasoning is, he doesn't want to call this individual. And in situations like that — I mean, I can understand if I was calling someone that basically there was nothing there. I mean, just to waste the court's time. But I mean, someone who is going to place me in a totally different city, that's already testified in Federal Court against over fifty Solidos, and he's going to place me in a different city with him? That, to me, that sounds relevant to me. I don't understand. He has his reasonings for not calling this individual. I mean, I can't see myself doing a hundred and forty years for a crime I didn't — I did not commit, without doing everything possible that I think can be done. I've already done that. I already got convicted of this crime; didn't commit this crime and had a hundred and forty years. People don't listen to you once you're inside jail. You can holler til your lungs — til you bleed out your mouth. People don't want to hear it. You could say you didn't do it; they could say, well everybody in jail says they didn't do it. So I feel before I get convicted with all this time for a crime I didn't commit, I should have some say so. And I don't think that, if we rested right now, I feel I'll be convicted.
( Id., pp. 4-5.)
Later in the court day, the defendant inquired as to his representation by Attorney Stawicki:
THE DEFENDANT: I mean, if he's not going to do what I feel is in my best interest, I don't think that he should be my attorney. I mean, this is my life. Like I explained to him, when this is over, if I lose, he just goes on to another case. I'm the one that has to go to jail. And he is not doing what I feel is in my best interest. He's doing what he feels is in his best interest, not mine. So I don't understand how his interest comes before my interest.
( Id., p. 9.)
Judge Shortall denied the defendant's request for self-representation.
The court next determines if this factor, the defendant's reasons for the self-representation request, weighs in favor of the defendant's interest in self-representation pursuant to the Supreme Court's directed analysis.
The defendant's reason for the self-representation request, at first review, appears to have legitimacy. In fact, Chief Judge Flynn, in his Appellate Court dissenting opinion, indicated that "the record supports a conclusion that the defendant had a very legitimate reason for wanting to represent himself at the close of the state's case; he wanted to put on a defense by calling a witness on his behalf." State v. Flanagan, supra, 102 Conn.App. 145 (Flynn, C.J., dissenting). Although the reason for the defendant's desire to represent himself, to call witnesses, may be legitimate on its face, that does not automatically lead to the conclusion that this factor weighs in favor of the defendant's interest in self-representation. It is the trial court's duty to analyze the defendant's stated reason within the context of the trial.
The decision to call witnesses does not stand alone. The decision to call witnesses and the potential effectiveness of such witnesses' testimony is a trial strategy decision.
Article first, § 8 of the Connecticut constitution provides, in part, that "[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . ." This does not guarantee a criminal defendant the right to make the ultimate decision as to which witnesses to call at trial. State v. Davis, 199 Conn. 88, 100, 506 A.2d 86 (1986).
The fundamental rights that a defendant personally must decide to waive are, therefore, distinguishable from tactical trial rights that are not personal to the defendant and that counsel may choose to waive as part of the trial strategy. Id., 95.
"The distinction between fundamental personal rights and tactical rights primarily is founded on practicality and the smooth progress of litigation without undue disruption. Tactical decisions appropriately may be waived by counsel acting alone because [t]he adversary process could not function effectively if every tactical decision required client approval." (Internal quotation marks omitted.) State v. Gore, 288 Conn. 770, 779 n. 10, 955 A.2d 1 (2008).
Although there are basic rights that the attorney cannot waive without the fully informed and publically acknowledged consent of the client, the lawyer has — and must have — the full authority to manage the conduct of the trial.
To allow a defendant's desire to call witnesses in contravention of an attorney's expert decision would create an atmosphere of disruption for the defendant, the state and the fact finder during the trial.
In the case before the court, the defense counsel's trial strategy decision was explained to this court. Counsel indicated that the defendant's request to call the three witnesses would not advance the defense's theory of the case. In fact, it was Attorney Stawicki's opinion that calling the witnesses would be shifting the burden of proof to the defense in this case where he believed the jury would find the defendant not guilty. (April 6, 2010 Transcript, p. 55.) Additionally, the defendant's proposed witnesses carry with them potential risks which affect the determination of this factor weighing in favor or not in favor of the defendant.
The court assesses the three proposed defense witnesses in light of their expected testimony.
"Teely" was presented by the defendant as a witness he wished to call who would have placed him in another city at the time of the incident. Although it may be inferred that the defense was aware of the true name of "Teely" and his whereabouts, he was not disclosed as a potential alibi witness. His testimony, therefore, may have been excluded by the court.
Shannon Lamar was also presented by the defendant as a witness he wished to call. The defense has indicated that the testimony of Shannon Lamar, who was Mr. Flanagan's girlfriend, would have contradicted the state's witness, Pennie Yonan, by presenting a different version as to how the defendant arrived at Yonan's house on the day before the homicides. This was inconsistent with the trial strategy presented by Attorney Stawicki, which was to challenge the credibility of Ms. Yonan, rather than give the jury the option to select conflicting testimony. Additionally, as proffered, Ms. Lamar's testimony served a limited purpose. Her testimony would have contradicted Pennie Yonan's only on the collateral matter of how the defendant arrived at Yonan's house.
Fernando Rivera was the third witness that the defendant wished to call. Mr. Rivera was not originally on the defendant's witness list for the second trial. The defendant asserts that Mr. Rivera would have testified that Mr. Flanagan was not present at the Los Solidos leaders' meeting where the two-for-one order to kill was given.
After review of the proffered testimony of Mr. Rivera, it appears that his testimony was not critical or significant. Even if credited by the jury, Rivera's testimony, in light of all the other evidence presented, would not have absolved the defendant or precluded the jury from reaching a verdict of guilty. Evidence of the defendant's presence at a leaders' meeting where the general order to kill two Latin Kings for every Los Solidos member killed was made is not dispositive in a determination of guilt in this case. The jury could have inferred the defendant's knowledge of this order by other evidence introduced in the trial.
Additionally, none of these witnesses were "new" to defense counsel. He was aware of them and had an investigator speak to them, and chose not to call them. Notably, these witnesses were not called by Attorney Woodard in the first Flanagan trial either. Moreover, the defendant did not seek the introduction of their testimony in the first trial.
After thorough consideration of these arguments, the court finds that this first factor, although compelling on its face, does not weigh in favor of the defendant's interest in self-representation.
II. The Quality Of The Defendant's Counsel
The second factor of the balancing test that the court must consider is the quality of defense counsel's work during the trial. The attorney's quality of performance must be keenly reviewed.
The defense argues that since the trial judge has recused himself, this factor should not be considered by this court. This court has agreed not to consider the outcome of the trial as a determination of defense counsel's performance at trial, as consideration of this request is addressed in the context of "when the request was made." However, the record in this case is sufficient to permit this court to effectively consider defense counsel's performance during the trial. The court has reviewed the trial and jury selection transcripts, as well as some pretrial hearing transcripts.
This court believes that it is appropriate and proper to consider Judge Shortall's assessment of defense counsel's performance in its consideration of the stated facts and when addressing the balancing test.
On March 18, 2003, when speaking to the defendant, Judge Shortall indicated that: "[Attorney Stawicki] is a very experienced attorney. He's tried many murder cases. I've had the opportunity to observe his performance in this case from . . . January 8th when we had some hearings on motions. And as far as I am concerned, his performance has been beyond competent and [has] been superior." (March 18, 2003 Transcript, pp. 3-4.)
Judge Shortall stated later in the proceedings, when addressing Mr. Flanagan:
Well it doesn't appear to me, Mr. Flanagan, based on my observations of Mr. Stawicki's performance from January 8th to today, which is March 18th, that his decisions and his actions have been in his interest as opposed to yours. So I — and I can't imagine why he'd be changing courses now. I mean, Mr. Stawicki's decisions, as best as I have observed have been solely in your interest. And his performance has been beyond competent and in my view, superior over the last two and a half months.
( Id., pp. 9-10.)
Judge Shortall's assessment of defense counsel's performance was that it was "superior." This court accepts the trial court's observations and gives deference to it.
Although not part of the trial itself, another judge, the Honorable Susan Handy, the presiding criminal judge at the time, considered that "Mr. Stawicki has been a great advocate for you [Mr. Flanagan] . . ." (December 20, 2002 Transcript, p. 6.)
Further, this court's own review of the trial and jury selection transcripts supports the opinion that defense counsel's actions were appropriate and competent. Counsel also presented competent trial strategy.
There is no evidence presented that Mr. Flanagan was dissatisfied with counsel's performance during the trial. Rather, Mr. Flanagan challenged the trial strategy decision not to call certain witnesses. There is no evidence of an argument from Mr. Flanagan that Attorney Stawicki was not representing him appropriately during the trial. The court can infer that Mr. Flanagan, up until that point in the trial, was satisfied with his counsel's representation.
There was a problem between the defendant and Attorney Stawicki before the trial commenced. This will be addressed during the discussion of the third factor.
After consideration of Judge Shortall's comments and an independent review of the record in assessing defense counsel's performance, this court finds defense counsel's performance to be competent and appropriate.
The court finds that the second factor does not weigh in favor of the defendant's interest in self-representation.
III. The Defendant's Prior Proclivity To Substitute Counsel
The third factor posed by the Supreme Court to be considered in assessing a defendant's mid-trial request for self-representation is his prior proclivity to substitute counsel. The court's focus on this factor includes all of the trials that the defendant was involved in with respect to this matter.
In the matter before this court, the court had the opportunity for some review of the defendant's conduct in Flanagan I before Judge Espinosa and an extensive review in Flanagan II before Judge Shortall. The defense has presented an affidavit from Attorney Herman Woodard, trial counsel for the initial Flanagan trial. Mr. Woodard indicates that Mr. Flanagan never sought him to be removed as counsel. A review of the history of the trial before Judge Shortall indicates that during pretrial proceedings, Mr. Flanagan requested that Attorney Stawicki be removed for failure to have an investigator assist in his defense. (December 20, 2002 Transcript, pp. 1-6.) Mr. Stawicki explained that, as a result of the transfer of the defendant's case from the Hartford Judicial District to the New Britain Judicial District, the assigned investigator was unable to continue due to a conflict. The situation was further exacerbated by budgetary issues. Mr. Stawicki resolved the issue by hiring a new investigator. As a result of this action, Mr. Stawicki continued as Mr. Flanagan's counsel. It does appear that the defendant was not hesitant to request a dismissal of counsel when he was not satisfied with Attorney Stawicki's performance or decisions.
At that December 20, 2002 hearing, Mr. Flanagan represented to the court (Handy, J.) that Public Defender Ken Simon told him that his attorney (Stawicki) was lying to him. (December 20, 2002 Transcript, p. 2.)
Application of this third factor to the facts of this case does not weigh in favor of or against the defendant's interest in self-representation.
CT Page 23228
Balance
The court, after thorough consideration of these three factors, now weighs them against the potential disruption of the proceedings already in progress that would occur if the defendant's request was granted.The defendant's request for self-representation came at the close of the state's case, and after the testimony of thirty-seven (37) witnesses, the introduction of ninety-two (92) state exhibits, seventy-five (75) defense exhibits, almost two weeks of evidence, and twenty-one (21) days of jury selection.
The defendant indicated that he requested self-representation so that he could present three witnesses. The court has previously discussed the nature of their testimony, and in two instances, the lack of disclosure.
As it relates to non-disclosure of an alleged alibi witness, even if the court were to allow this testimony, the defense would have to find and produce this witness. The state would have to be given an opportunity to question him in anticipation of his testimony. Even if "Teely's" testimony were permitted, there is a likelihood of delay of the trial, which would present a potential loss of jurors, exposing the matter to a mistrial. One alternate juror had already been excused at the time the defendant made his request. The same concern holds true with respect to the other undisclosed witness whom the defendant wished to call, and any rebuttal witnesses deemed necessary by the state as a result of these additional witnesses. This court has previously discussed the question of the effectiveness of the witnesses' testimony.
The defendant argues there would be no delay as a result of his self-representation. The court is not bound to believe that assertion and does not credit it. See State v. Bozelko, 119 Conn.App. 483, 503, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010). The defendant also has not indicated that if he were allowed to represent himself, no further requests for reinstatement of Attorney Stawicki or for new representation would occur. These considerations, of course, would have a different focus if the request had occurred prior to the start of trial and not at the point of the completion of the prosecution's case.
The potential loss of jurors and additional time for presentation of evidence are to be considered within delay and prejudice to the state. All of these areas are of concern to the court. But these areas are not the sole consideration of potential disruption. Consideration must be given to the interruption of the management of trial strategy properly designated to the attorney for the defendant.
Indeed, [g]iving the attorney control of trial management matters is a practical necessity . . . Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial.
(Internal quotation marks omitted.) State v. Gore, supra, 288 Conn. 779 n. 10.
Conclusion
For all these reasons, the court determines, on the basis of the criteria set forth in State v. Flanagan, 293 Conn. 406, 978 A.2d 64 (2009), that the potential disruption of the proceedings already in progress outweighs the defendant's interest in self-representation.
Therefore, the court finds that the defendant's request for self-representation should be denied and that a Practice Book § 44-3 canvass need not be conducted.