State v. Hamilton

Norcott, J.,

concurring.

I concur in the result reached by the majority. I write separately because I *251view the question of whether the trial court abused its discretion by failing to grant a short continuance to the defendant so that he could secure private counsel to be much more difficult than the majority indicates in its opinion. I am disturbed by what I perceive to be assumptions that may have been made unconsciously concerning this defendant as he has gone through the judicial process. Although a colorable argument can be made that the trial court’s denial of the motion for a continuance may not ultimately have been an abuse of discretion, I think it is a very close call. Further, it is important that the judiciary not allow its actions to be influenced by inappropriate assumptions that, although not rising to the level of an abuse of discretion, are inappropriate in our multicultural society.

The record indicates that the defendant was a seventeen year old African-American male from Bridgeport who was under sentence of twenty-five years in prison for a different crime. At the hearing in question, he was unruly, abusive and profane. The record also indicates that this defendant: (1) had made repeated representations to the trial court that he wished to obtain private counsel; (2) had been represented previously by the public defender assigned to him in this case, which representation had resulted in his being convicted of the crimes charged and sentenced to the aforementioned twenty-five years in prison; (3) was dissatisfied with the performance of the public defender as a result of this previous unsuccessful representation; (4) had a relative who was making a good faith effort to secure private counsel for him; and (5) had members of his family with financial assets that may have been available to pay for private counsel. Additionally, the state had no objection to granting a continuance to the defendant to obtain private counsel. On this record, although the defendant’s desire for private counsel was reasonable and apparent, the trial court denied his motion.

*252As already noted, the state had no objection to granting a continuance for the defendant to obtain private counsel. The trial court’s denial of the defendant’s request was, therefore, motivated solely by a desire to move its docket with expeditiousness. Although the jury had been selected for trial, the state had not begun to present evidence and the defendant had not been put to plea prior to his request for a continuance. Thus, it is difficult to see that a substantial hardship would have been caused by granting a continuance before the defendant’s trial had effectively begun. On the facts of this case, I believe the delicate balance between the defendant’s constitutional rights and the public interest in efficient administration of justice should have tipped in favor of the former.1

The majority correctly points out that under the fourteenth amendment to the United States constitution, a defendant’s constitutional right to counsel of choice is violated by “an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay . . . .” (Internal quotation marks omitted.) Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983). Further, the matter of a continuance is within the discretion of the trial court. Such discretion will not be disturbed on appeal absent clear abuse. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964); State v. Olds, 171 Conn. 395, 402, 370 A.2d 969 (1976). When, however, the reason for the requested continuance is a defendant’s exer*253cise of the sixth amendment right to obtain counsel of choice, the exercise of that discretion requires a delicate balance between the defendant’s constitutional right to counsel of choice; see Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Linton v. Perini, 656 F.2d 207, 208 (6th Cir. 1981);2 and the public interest in efficient administration of justice. Giacalone v. Lucas, 445 F.2d 1238, 1240 (6th Cir. 1971), cert. denied, 405 U.S. 922, 92 S. Ct. 960, 30 L. Ed. 2d 793 (1972).

1 do not believe that the record supports the assertion of the majority that the trial court did not act precipitously in response to the defendant’s motion. The defendant stated repeatedly that he wished to obtain private counsel because he was dissatisfied with the performance of the special public defender and he believed that he was being “railroaded” by the judicial system. The defendant had arranged to have a named relative schedule an appointment with a named private attorney to inquire as to the attorney’s availability and willingness to represent the defendant. In response to this good faith effort on the part of the defendant to secure private counsel, the trial court directed its inquiry to the question of whether the specific attorney whom the defendant was attempting to engage was available to come immediately to the court to represent the defendant. Specifically, the trial court asked an associate of the named attorney if the named attorney would “be able to drop everything and take up this case, even if there were some suspicion that he could be compensated.”3 The associate refused to rule out representa*254tion of the defendant under the circumstances postulated by the trial court. Notwithstanding this refusal, the trial court denied the defendant’s motion because there was no representation that the specific lawyer the defendant’s relative had attempted to contact was available to represent the defendant immediately. The trial court also stated that there was no indication that the defendant had the ability to pay for private representation, notwithstanding the defendant’s assertions that family assets were available to pay for such counsel.

The principal motivation driving the defendant’s motion was his need for time to secure private counsel. The defendant had been represented recently in a separate criminal trial by the special public defender assigned to him in this instance. In that case, the defendant had been convicted of certain crimes, and, following the judgment of conviction, sentenced to twenty-five years in prison. It is not surprising that the defendant was dissatisfied with representation that had not been able to prevent his conviction on previous charges. This previous unsuccessful representation was a legitimate reason for the defendant to desire private counsel. Under this record, the majority’s assertion that the defendant failed to claim that his “assigned counsel was unprepared to go forward, unskilled in the issues at hand, or unresponsive to the defendant’s wishes about the manner in which his defense should proceed,” is of little significance: it is not clear that this defendant was sufficiently articulate to have raised such objections to his counsel, nor is it clear that his objections would have had to rise to this level of specificity in order to prevail on his sixth amendment claim. His dissatisfaction with the special public defender, based on that lawyer’s unsuccessful representation of him, was sufficient grounds for the defendant to have raised in connection with his motion for a continuance.

*255I am also troubled by the significance the majority attaches to the fact that the defendant requested a continuance of unspecified duration in order to seek private counsel. It was within the discretion of the trial court to limit the continuance to a reasonable period regardless of the length of time the defendant requested. The fact that the defendant failed to specify a duration for his continuance does not affect his constitutional right to counsel under the sixth amendment.

Similarly, I am confused by the majority’s analysis of the defendant’s incarceration and his motivation in moving for a continuance. The majority states that because the trial court did not find that the defendant’s motion was motivated by a desire to delay his trial, “little weight should be attached on appeal to the fact that the defendant was incarcerated at the time of the motion and arguably had little to gain from delay” (Emphasis added.) The majority’s reasoning is syllogistic: because the defendant was incarcerated, he had little to gain from delay, because he had little to gain from delay, we will attach little weight to the fact that he was incarcerated.

In fact, the defendant had nothing to gain and much to lose from delay: specifically, his freedom. Because the defendant was incarcerated as a sentenced prisoner on other charges, were he to receive for the charges in this case a concurrent sentence equal to or greater than that he received in his first trial (a fact that was not unlikely in view of the similar nature of the crimes charged in both instances), any time he served prior to being sentenced for the second set of offenses would have to be repeated—“dead-time” in prison parlance. General Statutes § 18-98d. The defendant’s desire for private counsel was sufficiently strong that he was willing to incur the risk of dead-time by seeking a postponement of the commencement of the trial. I believe *256that the trial court should have taken judicial notice of this fact when considering the merits of the defendant’s motion for continuance.

Although this defendant appeared to be an indigent street tough, he was entitled to a full and fair hearing by the judiciary of this state. Although the defendant may have ultimately failed to retain private counsel, the better course would have been for the trial court to grant a short continuance for him to pursue that reasonable and legitimate request.

Nonetheless, I concur in the result.

My reasoning is limited to the specific and extraordinary facts of this case: the representation of the defendant by the same public defender who had just represented him in a case leading to his conviction and sentence to twenty-five years in prison; the lack of objection by the state to the continuance; the age of the defendant; and no perceived harm in granting a short continuance to the defendant for purposes of pursuing private counsel. I do not mean to suggest that the door be opened for frivolous or dilatory motions for continuance on the eve of trial. State v. Beckenbach, 198 Conn. 43, 57-59, 501 A.2d 752 (1985).

It is clear that a defendant’s right to counsel of choice under the sixth amendment, as well as under the fourteenth amendment, is not absolute. United States v. Ely, 719 F.2d 902, 904 (7th Cir. 1983); State v. Rapuano, 192 Conn. 228, 233 n.6, 471 A.2d 240 (1984).

It is difficult to imagine that any busy practitioner could have answered in the affirmative to the trial court’s inquiry.