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STATE OF CONNECTICUT v. DEJA PASCHAL
(AC 43270)
Elgo, Cradle and Suarez, Js.
Syllabus
Convicted of attempt to commit assault of public safety personnel, the
defendant appealed to this court. At a pretrial hearing, the defendant
informed the trial court that he was dissatisfied with the representation
provided by his public defender and requested that he be able to proceed
as a self-represented party. The trial court determined that the defendant
was mainly concerned with the speed at which the proceedings were
progressing, denied the request without prejudice, asked the defendant
to give defense counsel another chance to effectively represent him,
and told the defendant that he could reassert his request at a later
time. Approximately four months later, at another pretrial hearing, the
defendant again indicated that he was frustrated with his defense counsel
and the speed of the proceedings. He asked the trial court if he could
have new counsel and then stated that he was reasserting his sixth
amendment right to self-representation. The trial court told the defen-
dant that he needed to file a motion if he wanted to represent himself.
The defendant did not file such a motion and defense counsel continued
to represent him without additional complaint until approximately nine
months later, when the defendant personally filed several motions. Dur-
ing a hearing on the defendant’s motion for the removal of appointed
counsel and appointment of new counsel, the defendant again asserted
that his requests for self-representation and for new counsel were wrong-
fully denied. He asked for the appointment of a special public defender
to replace defense counsel, and he further indicated that he would not
object to the appointment of new counsel. Thereafter, new counsel was
appointed and the trial proceeded without the defendant making any
additional requests for self-representation. Held:
1. The defendant could not prevail on his claim that the trial court deprived
him of his right to self-representation because the defendant waived
that right: the trial court did not conclusively deny the defendant’s
initial in-court request for self-representation, as it explicitly denied the
defendant’s request without prejudice, granted a short continuance to
provide defense counsel with additional time to obtain the evidence
that the defendant was seeking, and told the defendant that he could
reassert his right at any point in the future; moreover, the defendant’s
second in-court request for self-representation did not constitute a clear
and unequivocal request, as was required to invoke the right, because
it was intertwined with a request for new counsel, and the trial court
expressly advised the defendant that he could file a motion if he wished
to proceed as a self-represented party; furthermore, the defendant’s
requests set forth in his motions did not reflect clear and unequivocal
assertions of the right to self-representation, as he made simultaneous
requests to represent himself and for the appointment of new counsel,
and the defendant explicitly told the trial court at the hearing on his
motion for the removal of appointed counsel and appointment for new
counsel that he would not object to the appointment of new counsel.
2. The defendant’s claim that the trial court abused its discretion by admitting
evidence of his prior uncharged conduct was not reviewable, the defen-
dant having waived that claim at trial: the defendant was precluded
from claiming that the trial court erred by admitting such evidence
because, during the hearing on the defendant’s motion to preclude evi-
dence, defense counsel conceded that the prior instances of uncharged
conduct were relevant for showing intent, motive, and a common scheme
and suggested that a limited number of the instances were admissible,
and because defense counsel failed to object to any of the evidence of
prior instances of misconduct at trial.
Argued March 2—officially released September 7, 2021
Procedural History
Substitute information charging the defendant with
three counts of the crime of assault of public safety
personnel and one count of the crime of attempt to
commit assault of public safety personnel, brought to
the Superior Court in the judicial district of Danbury,
geographical area number three, and tried to the jury
before Pavia, J.; verdict and judgment of guilty of
attempt to commit assault of public safety personnel,
from which the defendant appealed to this court.
Affirmed.
Laura Marie Hamilton, certified legal intern, with
whom was James B. Streeto, senior assistant public
defender, for the appellant (defendant).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky III,
state’s attorney, and Jason Germain, senior assistant
state’s attorney, for the appellee (state).
Opinion
CRADLE, J. The defendant, Deja Paschal,1 appeals
from the judgment of conviction, rendered following a
jury trial, of one count of attempt to commit assault of
public safety personnel in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-167c (a) (5). On appeal, the
defendant claims that the trial court (1) violated his
constitutional right to self-representation and (2) erred
by allowing the state to present evidence of uncharged
misconduct. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On December 5, 2016, the defendant was incarcer-
ated at Garner Correctional Institution. While making
a routine inspection of the facility, Correction Officer
Christopher Byars noticed that the window of the defen-
dant’s cell door had been covered with toilet paper,
obstructing the officers’ view of the cell. Because
obstructing the officers’ view of the cell is against the
facility’s regulations, Byars told the defendant to imme-
diately remove the toilet paper. The defendant did not
comply and Byars contacted his supervisor, Captain
Thomas Kenny, to assist. On arriving, Kenny told the
defendant to uncover the window. Although the defen-
dant initially threatened to continue covering his win-
dow, the defendant removed the toilet paper.
Approximately fifteen minutes later, Byars again
found the defendant’s window covered with toilet
paper. Byars contacted Kenny again, who told the defen-
dant to remove the covering. When the defendant
refused, Kenny determined that the defendant should
be moved to a high security cell for additional supervi-
sion. In accordance with the facility’s regulations, Cor-
rection Officers Byars, Anthony Blekis, Anthony Kac-
przyski, John Reyes, and Peter Swan assisted in moving
the defendant while Officer William Galpin videotaped
the move. After the defendant was transferred, the offi-
cers conducted a strip search and attempted to apply
in cell restraints to secure the defendant’s ankles and
hands in front of his body. While the officers were
attempting to secure the defendant, he threatened to
spit on them and loudly sucked in saliva. As a result
of this threat, the officers covered the defendant’s
mouth and put a mesh safety veil designed to block
the passage of saliva on his head. The defendant spit,
striking two of the officers through the safety veil. The
saliva struck Kacprzyski in the face and Blekis on
the arms.
The defendant was charged with two counts of
assault of public safety personnel in violation of § 53a-
167c (a) (5); one count of assault of public safety per-
sonnel in violation of § 53a-167c (a) (3); and one count
of attempt to commit assault of public safety personnel
in violation of §§ 53a-49 (a) (2) and 53a-167c (a) (5).
Following a trial, a jury acquitted the defendant of the
three assault counts but convicted him of attempt to
commit assault of public safety personnel. On May 21,
2019, the court, Pavia, J., sentenced the defendant to a
total effective sentence of seven years of incarceration,
execution suspended after three years, followed by five
years of probation, to run consecutive to the defen-
dant’s existing sentence in an unrelated matter. This
appeal followed.
I
The defendant first argues that the court deprived him
of his right to self-representation when it improperly
denied his clear and unequivocal request to represent
himself without canvassing him regarding the waiver
of the right to counsel. We are not persuaded.
The following legal principles guide our analysis of
the defendant’s claim. ‘‘The sixth amendment to the
United States constitution provides in relevant part: In
all criminal prosecutions, the accused shall enjoy the
right . . . to have the assistance of counsel for his
defense. The sixth amendment right to counsel is made
applicable to state prosecutions through the due pro-
cess clause of the fourteenth amendment. . . . In Far-
etta v. California, [422 U.S. 806, 807, 95 S. Ct. 2525, 45
L. Ed. 2d 562 (1975)] the United States Supreme Court
concluded that the sixth amendment [also] embodies
a right to self-representation and that a defendant in a
state criminal trial has a constitutional right to proceed
without counsel when he voluntarily and intelligently
elects to do so. . . . In short, forcing a lawyer upon
an unwilling defendant is contrary to his basic right to
defend himself if he truly wants to do so. . . .
‘‘It is well established that [t]he right to counsel and
the right to self-representation present mutually exclu-
sive alternatives. A criminal defendant has a constitu-
tionally 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 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. . . . In cases . . . how-
ever, where the defendant claims that the trial court
improperly failed to exercise that discretion by can-
vassing him after he clearly and unequivocally invoked
his right to represent himself . . . whether the defen-
dant’s request was clear and unequivocal presents a
mixed question of law and fact, over which . . . our
review is plenary. . . .
‘‘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 defen-
dant clearly and unequivocally invoke his right to pro-
ceed [as a self-represented party] is one of many safe-
guards of the fundamental right to counsel. . . .
Accordingly, [t]he constitutional right of self-represen-
tation depends . . . upon its invocation by the defen-
dant 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-represen-
tation, 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 per-
mit 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 [as a self-represented
party] is concerned, [a defendant] must do no more
than state his request, either orally or in writing, unam-
biguously 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 defen-
dant must result in a clear and unequivocal state-
ment. . . .
‘‘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-representa-
tion. . . . 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 coun-
sel . . . 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 altered; internal
quotation marks omitted.) State v. Pires, 310 Conn. 222,
230–32, 77 A.3d 87 (2013).
‘‘When a defendant’s assertion of the right to self-
representation is not clear and unequivocal, recognition
of the right becomes a matter entrusted to the exercise
of discretion by the trial court. . . . 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.’’
(Citations omitted; internal quotation marks omitted.)
State v. Carter, 200 Conn. 607, 613–14, 513 A.2d 47
(1986). With these principles in mind, we turn to the
defendant’s claim on appeal.
The defendant claims that he first asserted his right
to self-representation in court on May 4, 2017. During
that court appearance, Assistant Public Defender
Thomas Leaf appeared on the defendant’s behalf and
informed the court, Shaban, J., that the defendant
wanted to represent himself. The following colloquy
took place between the court, defense counsel, and the
defendant:
‘‘[Attorney Leaf]: I . . . went to see [the defendant].
He refused to speak with me this morning and informed
me through the Marshal Services that he . . . wants
to go forward as a self-represented party.
‘‘The Court: All right. Good Morning, sir.
‘‘The Defendant: Good morning, Your Honor. We’ve
been back to this court four times since arraignment.
Attorney Leaf has not [come] for an initial interview.
Attorney Leaf has failed to get the required police
reports. He has failed to obtain the video from the state
prosecution. He has done nothing to assist me in my
case. He’s currently ineffective. I’d like to proceed
pro se.’’
The court then asked Leaf about the status of his file
and whether he had received any discovery materials.
Leaf explained that he had received the police reports
but was waiting to receive the video recording from
the state depicting the incident. The defendant indi-
cated that he wanted to pursue ‘‘contempt of court’’
because the state had not turned over the video
recording, but his attorney had told him that he would
file a motion to compel. The court then addressed the
defendant concerning the reason for his stated desire
to represent himself and said, ‘‘I assume that, by wanting
to represent yourself, you believe that you’ll be able to
dispose of this case more quickly than it has gone up
to this point. Is that a fair assumption?’’ The defendant
answered, ‘‘[T]hat is correct . . . .’’ The defendant
complained that the state did not have evidence to
sustain an assault charge and that his attorney had not
filed a motion to dismiss. The court explained to the
defendant that his case will not move any faster if he
proceeds as a self-represented party because he needs
access to the evidence and the state has to give him
the video recording of the incident. Therefore, the court
stated that Leaf has ‘‘a history of working with the
state’s attorney’s office and I think that he can effec-
tively represent you in this matter. And so, at this point,
I am—I’m going to deny your request to represent your-
self without prejudice, meaning you can—you can make
the request again down the road. I want to give Mr.
Leaf one more opportunity here, at least, to see if he
can get his hands on the tape and effectively represent
you in the matter and try and achieve the goals that
you’re trying to achieve . . . .’’ The defendant pre-
served his objection on the record and the court granted
the defendant a continuance of one week.2
On appeal, the defendant argues that he clearly and
unequivocally requested to represent himself, that the
court abused its discretion in failing to canvass him,
and that he was, therefore, deprived of his constitu-
tional right to self-representation. The state argues,
however, that the court’s subsequent inquiry revealed
that the defendant may simply have been expressing
frustration with his attorney and not necessarily invok-
ing his right to represent himself. Assuming, without
deciding, that the defendant’s statement during his dia-
logue with the court on May 4, 2017, constituted a clear
and unequivocal request to represent himself, we con-
clude that the court did not conclusively deny that
request and that the defendant subsequently waived it.
‘‘[W]hen a trial court has not clearly and conclusively
denied a defendant’s request to represent himself, the
defendant may subsequently waive such a request. But,
when a court has clearly and conclusively denied the
request, the defendant does not waive his right to self-
representation by subsequently acquiescing in being
represented by counsel or by failing to reassert that
right.’’ (Emphasis added.) State v. Braswell, 318 Conn.
815, 843–44, 123 A.3d 835 (2015).
In reaching this conclusion, our Supreme Court relied
on the decision of the United States Court of Appeals
for the Second Circuit in Wilson v. Walker, 204 F.3d 33
(2d Cir.), cert. denied, 531 U.S. 892, 121 S. Ct. 218, 148
L. Ed. 2d 155 (2000). In Wilson, the Second Circuit held:
‘‘Whether or not [the trial court’s] ruling . . . could be
construed as a clear denial of Wilson’s request to pro-
ceed [as a self-represented party] . . . it is apparent
that both Wilson and [the trial court] considered the
matter still open for discussion . . . . [I]n the absence
of additional evidence, we are unwilling to assume that
a renewal of Wilson’s request would have been fruitless.
. . . In view of the fact that there were two subsequent
changes in the attorney appointed to represent Wilson
and the question of self-representation was left open for
possible further discussion, we conclude that Wilson’s
failure to reassert his desire to proceed [as a self-repre-
sented party] constituted a waiver . . . .’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Id., 38.
The same reasoning applies to the present case. It is
clear from the record that both the defendant and the
court considered the matter of the defendant’s repre-
sentation still open for discussion. Although the court
did not canvass the defendant in accordance with Prac-
tice Book § 44-3, it nonetheless asked the defendant
what motivated his desire to represent himself, to which
the defendant stated that he wanted to expedite the
matter because he believed the state had no evidence
on which to proceed. The court addressed the concern
by explaining to the defendant that his attorney needed
to obtain the video recording of the incident from the
state in order to determine whether to file a motion to
dismiss the charges. The court then denied the defen-
dant’s request without prejudice and granted a continu-
ance of just one week to afford Leaf the opportunity
to obtain the video from the state in accordance with
the defendant’s goals. The court did not advise the
defendant that he would need to provide additional
facts in support of his request if he reasserted it at a
later time. Cf. State v. Braswell, supra, 318 Conn. 845
(trial court’s denial was conclusive where court ‘‘condi-
tioned its willingness to reconsider its ruling on seeing
some additional support for the motion’’ (internal quota-
tion marks omitted)). Because the court denied the
defendant’s request without prejudice, granted a short
continuance to permit the defendant to obtain a critical
piece of evidence that he was seeking, and explicitly
told the defendant that he could reassert this right at
any point in the future, his request was not conclu-
sively denied.
The defendant contends that, even if his request to
represent himself was not clearly and conclusively
denied on May 4, 2017, he did not waive that right
because he subsequently reasserted it in a clear and
unequivocal manner. Specifically, the defendant claims
that he also invoked his right to represent himself during
a hearing on September 1, 2017, in four motions that
he filed in June and July, 2018, and in another court
hearing on July 19, 2018. After carefully considering the
events on which the defendant relies, we disagree.
The record reveals that, during a proceeding on Sep-
tember 1, 2017, Leaf represented to the court, Hon.
Susan S. Reynolds, judge trial referee, that he had
received the video recording from the state but, because
of his schedule, he had not yet reviewed it with the
defendant. He requested a continuance until October 4,
2017, to afford him time to review it with the defendant.
Following Leaf’s request, the defendant indicated that
he was frustrated that Leaf was requesting a lengthy
continuance and further complained that Leaf did not
file a motion to dismiss the charges. The defendant
stated to the court, ‘‘[I]t’s quite clear he has a lengthy
case load. I need a new counsel, Your Honor.’’ The
defendant again maintained that a motion to dismiss
should have been filed because the state did not have
any evidence to prosecute him. The following colloquy
between the defendant and the court ensued:
‘‘The Defendant: Can I have new counsel? . . .
‘‘The Court: [W]hen a defendant comes into this court,
says he can’t afford counsel, he would like me to appoint
counsel for him, I do so. You happen to have one of
the most competent attorneys that I appoint for defen-
dants. . . . If you want to make a motion to have Attor-
ney Leaf removed, you’re free to do that and at the end
of such a hearing, the court may remove Attorney Leaf
or may order him to stay. I will tell you that this is not
Stop & Shop. We don’t try out one product, not like it,
return it and pick another. I appointed you an extremely
competent attorney. . . . If you don’t want Attorney
Leaf, that is your prerogative. Your other prerogative
is to accept the attorney I appointed for you, to hire
your own attorney or to represent yourself. . . .
‘‘The Defendant: Your Honor, I have . . . asked for
pro se and I was denied by another judge. I have asked—
‘‘The Court: Okay. Well, then that’s the end of that.
‘‘The Defendant: —I would like to reassert that. I
would like to reassert my sixth amendment right.
‘‘The Court: You do—file whatever motions you feel
appropriate. You will file a motion. . . . If you want
to be pro se, file a motion. Whatever judge considered
it the first time will reconsider it.’’
Following that dialogue, there was a discussion on
the record as to which judge the defendant had pre-
viously appeared. The court then reiterated: ‘‘Well, file
a motion if you want to represent yourself, and then
whatever judge it comes in front of will consider it in
light of that. . . . But you’ve got to file a motion. I can’t
put a motion down that doesn’t exist. You tell me you
want an earlier date, but I don’t have a motion in the
file. I can’t put anything down that isn’t in the file.’’
Leaf then indicated that he would show the defendant
the video prior to the next court date.
As the previous statements reflect, during the pro-
ceeding on September 1, 2017, the defendant twice
requested that a new attorney be appointed. Those
requests were based on his stated frustration with Leaf.
After the court denied the defendant’s requests for the
appointment of new counsel, he told the court that he
previously had sought to represent himself, that his
request was denied, and that he wished to reassert his
sixth amendment right to represent himself.
Because the defendant’s statements concerning self-
representation were intertwined with a request for new
counsel, they were equivocal. As stated previously, ‘‘[i]t
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 can-
not be exercised simultaneously, a defendant must
choose between them.’’ (Internal quotation marks omit-
ted.) State v. Pires, supra, 310 Conn. 230. In viewing
the dialogue in its entirety, in which the defendant
requested both the appointment of new counsel and to
represent himself, we conclude that the defendant did
not clearly and unequivocally assert his right to repre-
sent himself. See State v. Carter, supra, 200 Conn. 614
(‘‘[a] trial court, faced with the responsibility of recon-
ciling a defendant’s inherently inconsistent rights to
self-representation and to counsel, is entitled to await
a definitive assertion of a request to proceed [as a self-
represented party]’’).
We also note that the court did not consider the
defendant’s assertion to be a clear and unequivocal
request to proceed as a self-represented party. In an
effort to accommodate the defendant’s request, the
court expressly advised the defendant that, if he wished
to proceed as a self-represented party, he would be
required to file a motion for that purpose and that it
would be docketed specifically for a hearing before the
judge he appeared before on May 4, 2017. The defendant
did not file a motion, thus, we conclude that the defen-
dant waived his right to represent himself by ‘‘remaining
silent in the face of the court’s express invitation to
reassert his right to self-representation.’’ State v. Bras-
well, supra, 318 Conn. 843.3
The record reflects that from September, 2017 to
May, 2018, Leaf continued representing the defendant
in pretrial proceedings without further complaint from
the defendant. During June and July, 2018, the defen-
dant personally filed four motions. Specifically, on June
11, 2018, the defendant filed a handwritten letter to the
clerk of court requesting the court to remove Leaf from
his case. The defendant asked for ‘‘Attorney Leaf [to]
be removed from [his] case and new counsel assigned.’’
On July 2, 2018, the defendant filed a motion to dismiss
pursuant to General Statutes § 54-56 and a motion to
stay the proceedings, in which he asserted that he does
not fully understand criminal trial procedure, the court
had deprived him of his right to represent himself, and
the court had refused to appoint him new counsel on
request. On July 9, 2018, the defendant filed a motion
for the removal of appointed counsel and appointment
of new counsel in which he asserted that Leaf had
provided ineffective assistance throughout the pretrial
proceedings. The defendant also expressed that his
‘‘mental instability is overwhelming’’ as a result of a
change in his medication regime.
Our careful review of these motions leads us to con-
clude that they did not reflect a clear and unequivocal
assertion of the right to self-representation. Although
in one of the motions, the defendant referred to the
fact that the court had not permitted him to represent
himself, the motion cannot reasonably be construed as
a renewal of a request to represent himself. To the
contrary, the motions set forth requests for the appoint-
ment of new counsel.
On July 19, 2018, the trial court, Russo, J., held a
hearing on the motion for removal of appointed counsel
and appointment of new counsel. The defendant told
the court, ‘‘When I asked to go pro se, I was wrongfully
denied. When I asked for new appointment of counsel,
I was wrongfully denied. I’m being forced with counsel
with—without being requested for it. Nowhere in the
world does it say I have to take counsel.’’ Leaf told the
court that he thinks ‘‘to . . . remain as [the defen-
dant’s] attorney would be to do him a disservice and
be violative of his due process rights’’ and asked the
court to appoint a special public defender to replace
him based on the breakdown of the attorney-client rela-
tionship. The court asked the defendant if he would be
objecting if the court removed his attorney and
appointed him a new one, to which he responded,
‘‘[N]o.’’ The court also addressed the defendant’s mental
health and, after hearing from the defendant, noted ‘‘I
certainly believe as he sits here today in the limited
amount of conversation we had that he could assist
any attorney in his own defense, and I also believe he
understands the charges against him . . . and I also
think he can make a knowing and voluntary choice as
to whether he would like Mr. Leaf to remain as his
counsel.’’ Accordingly, the court granted Leaf’s oral
motion to withdraw as counsel and ordered the Office
of Public Defender Services to appoint a new public
defender. At the next appearance, Attorney Jeff Hutcoe
appeared on behalf of the defendant and represented
the defendant throughout the trial without any recorded
complaint.
At the July 19, 2018 hearing, the defendant referred
to the fact that, at a prior time during the proceedings,
he had not been permitted to represent himself. This
reference to a past ruling, however, cannot be construed
as a renewal of an earlier request to represent himself
or an expression of a present desire to proceed in a
self-represented capacity. Our interpretation of the
defendant’s remarks is further supported by the fact
that, later at that hearing, he explicitly told the court
that he would not object to the appointment of new
counsel, and new counsel thereafter was appointed
without complaint from the defendant.
Because the defendant, in his motions and during the
July 19, 2018 court hearing, made simultaneous requests
to represent himself and to have a new attorney
appointed, these instances are not clear and unequivo-
cal assertions of the right to self-representation. See
State v. Pires, supra, 310 Conn. 231–32. Moreover, dur-
ing the July 19, 2019 proceeding, he clearly and unequiv-
ocally represented to the court that he did not object
to having new counsel appointed on his behalf. Accord-
ingly, the defendant was appointed new counsel who
represented him throughout his trial, and, we reiterate,
he never again asserted the right to self-representation.
To the extent that the defendant claims that he
requested to represent himself on May 4, 2017, the court
did not conclusively deny that request. During the
remainder of the proceedings, the defendant did not
clearly and unequivocally reassert the right to self-rep-
resentation. Accordingly, the defendant waived his right
to represent himself.
II
The defendant next claims that the court abused its
discretion by admitting evidence of the defendant’s
prior uncharged misconduct. The defendant argues that
the evidence of uncharged misconduct was inadmissi-
ble because it was not relevant to show intent, motive,
or the absence of mistake, and that, even if the evidence
was relevant, it was unduly prejudicial. Because we
conclude that the defendant waived this claim at trial,
we decline to reach its merits.
The following additional facts are relevant to the
resolution of this claim. On December 7, 2018, the state
filed a motion for admission of other crimes, wrongs
or acts evidence, seeking to introduce evidence of two
past acts; the first occurring in May, 2012, and the sec-
ond in October, 2013, in which the defendant spat at
police and correction officers. On January 2, 2019, the
defendant filed a motion in limine seeking to preclude
the introduction of the evidence of the defendant’s
uncharged misconduct on the ground that its prejudicial
effect outweighed its probative value.4 Further, the
defendant sought notice from the state regarding
whether the state intended to produce any other evi-
dence of uncharged misconduct. On January 22, 2019,
the state filed a motion for admission of other crimes,
wrongs or acts evidence and, again, gave notice of its
intent to introduce evidence of the defendant’s
uncharged misconduct related to the May, 2012 and
October, 2013 incidents in order to ‘‘establish intent,
motive and state of mind of the defendant.’’
On February 8, 2019, the court, Pavia, J., held a
pretrial hearing to address the admissibility of the evi-
dence related to instances of prior uncharged miscon-
duct.5 At the hearing, defense counsel stated, ‘‘I under-
stand there’s an argument to be made on relevance,
you know, the case-in-chief, where lack of mistake,
intent on spitting, that does not require a door opened
. . . . I agree that it’s—it’s relevant for the state to
show that, in the past, [the defendant] has spit . . .
because it goes to relevancy on . . . numerous
grounds, absence of mistake, intent, motive, all these
things. I get that. . . . My concern became more collat-
eral . . . . Now, that . . . could be probably reme-
died by no one gets to talk about dates. . . . So, if all
this stuff comes in just to establish that he will spit, it
does tend to paint a bad picture of him. I’m not saying
it—it’s an unfair painting of it, but it’s unfairly prejudi-
cial in the context of a trial . . . . I understand the
. . . argument about the need for the state to establish
intent through prior incidents of spitting. . . . [M]y
argument then became, if there’s a limited number, the
ones closest in time create the least damage . . . .’’
The state told the court that it was planning to introduce
evidence of the May, 2012 incident, during which the
defendant spat at a police officer on the street. Defense
counsel responded, ‘‘Notwithstanding my concession
that a . . . certain amount of them should . . . come
in and are relevant, the very—the most salient concern
I have is the one that involves a complete outside-of-jail
incident [in May, 2012] . . . in the streets of Torring-
ton . . . .’’ He continued, ‘‘[W]hile I say I have no prob-
lem with the . . . dates, I’m not saying that I think it
should be four or five or six. I think maybe two would
be enough for me.’’
The court asked the state to narrow its request to
five prior acts it wanted to produce at trial. Defense
counsel did not object to any of these instances other
than wanting to limit the total number of past instances
admitted and to exclude certain dates. The court found
the evidence relating to three prior instances admissible
solely to establish intent, motive, and common scheme.
The court precluded misconduct evidence relevant to
all other incidents, including the May, 2012 incident.
During trial, Correction Officer Michael McLeod testi-
fied that, while he was on duty at Northern Correctional
Institute, the defendant attempted to spit on him
through the safety trap of his cell. Correction Officer
Swan testified that, during a prior incident, the defen-
dant spat on Swan’s arm. Swan further testified that he
covered the defendant’s mouth during the incident in
question because he was aware that the defendant had
a ‘‘history’’ of spitting. During the portion of Swan’s
testimony regarding the defendant’s history, defense
counsel stated, ‘‘Objection to—we’ve already discussed
it . . . I’ll just leave it alone.’’ Additionally, the parties
entered a stipulation detailing Correction Officer Tony
Vitale’s testimony that, on a different occasion while
Vitale was collecting trash, the defendant spat in his
direction but did not make contact with Vitale.
The defendant now argues on appeal that the trial
court erred by admitting the evidence regarding the
prior instances of misconduct. The state argues that
the defendant waived his objection to the admission of
this evidence. We agree with the state.
‘‘[W]aiver is [t]he voluntary relinquishment or aban-
donment—express or implied—of a legal right or
notice. . . . In determining waiver, the conduct of the
parties is of great importance. . . . [W]aiver may be
effected by action of counsel. . . . When a party con-
sents to or expresses satisfaction with an issue at trial,
claims arising from that issue are deemed waived and
may not be reviewed on appeal. . . . Thus, [w]aiver
. . . involves the idea of assent, and assent is an act of
understanding.’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Lynch, 123 Conn. App. 479,
490, 1 A.3d 1254 (2010).
In the present case, defense counsel conceded at the
hearing on the motion to preclude evidence that the
prior instances were relevant for showing intent,
motive, and a common scheme. In fact, he suggested
to the court that a limited number of those instances
were admissible. Additionally, he made no objection to
any of the evidence of prior instances during trial. As
a result, the defendant is precluded from claiming that
the trial court erred by admitting the evidence regarding
the prior instances of misconduct.6
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant is now known as Kyle Lamar Paschal-Barros.
2
During the next hearing on May 11, 2017, Leaf stated to the court, ‘‘Your
Honor, just having discussions with my client this morning I’ve come to the
conclusion that I have to make a motion under [General Statutes §] 54-56d
to have [the defendant’s] competency evaluated to determine whether or
not he understands the proceedings against him or whether or not he can
assist with his defense.’’ On May 16, 2017, the court ordered an examination
of the defendant’s competency. The defendant was found competent to
stand trial and appeared before the court again on July 6, 2017.
3
On September 1, 2017, Judge Reynolds continued the defendant’s case
to September 13, 2017, but the record reflects that the defendant did not
appear before the court because he had already been transported back to
the correctional facility in which he was incarcerated. Leaf represented on
the record that he had visited him at the correctional facility on the previous
day and that both he and the defendant had been under the impression that
the defendant’s next court date was October 4, 2017, so the court continued
the case to that date. No motions had been filed by the defendant.
4
The defendant filed only one motion in limine to preclude evidence
related to these two prior acts.
5
During the hearing, the parties referred to several additional instances
of prior uncharged misconduct and agreed that these instances were
‘‘attached to the motion of intent to offer uncharged misconduct.’’
6
The defendant also argues that the admission of the uncharged miscon-
duct evidence constituted plain error. The request for us to find plain error
is, at least, complicated by the fact that the claim itself was waived. ‘‘This
court has adhered to the view that waiver thwarts a finding that plain error
exists.’’ (Internal quotation marks omitted.) State v. Carrasquillo, 191 Conn.
App. 665, 704, 216 A.3d 782, cert. denied, 333 Conn. 930, 218 A.3d 69 (2019);
see also State v. Bialowas, 160 Conn. App. 417, 430, 125 A.3d 642 (2015),
remanded, 325 Conn. 917, 163 A.3d 1204 (2017). Nonetheless, our Supreme
Court has observed that ‘‘there appears to be some tension in our appellate
case law as to whether reversal on the basis of plain error could be available
in cases where the alleged error is causally connected to the defendant’s
own behavior.’’ State v. Darryl W., 303 Conn. 353, 371–72 n.17, 33 A.3d 239
(2012); see also State v. McClain, 324 Conn. 802, 805, 812, 155 A.3d 209
(2017) (waiver of claim of instructional error under State v. Kitchens, 299
Conn. 447, 10 A.3d 942 (2011), does not ‘‘necessarily foreclose’’ or ‘‘preclude’’
reviewing court from affording relief under plain error doctrine).
Even if we should accept the defendant’s invitation to conclude that plain
error exists in the present case, this claim fails. First, the defendant fails
to show a patent or readily discernable error on behalf of the trial court.
As defense counsel correctly noted, evidence of prior uncharged misconduct
may be admitted to prove ‘‘intent, identity, malice, motive, common plan
or scheme, absence of mistake or accident, knowledge, a system of criminal
activity, or an element of the crime, or to corroborate crucial persecution
testimony.’’ Conn. Code Evid. § 4-5 (c). Second, ‘‘[t]he plain error doctrine
is reserved for truly extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . [I]n addition to examining the
patent nature of the error, the reviewing court must examine that error for
the grievousness of its consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party cannot prevail under
plain error unless it has demonstrated that the failure to grant relief will
result in manifest injustice. . . . An appellant cannot prevail . . . unless
he demonstrates that the claimed error is both so clear and so harmful that
a failure to reverse the judgment would result in manifest injustice.’’ (Citation
omitted; emphasis in original; internal quotation marks omitted.) State v.
Cane, 193 Conn. App. 95, 126, 218 A.3d 1073, cert. denied, 334 Conn. 901,
219 A.3d 798 (2019). In the present case, the defendant has not demonstrated
that the court erred, let alone that it committed an error so clear and so
harmful as to constitute a manifest injustice.