Opinion
FBTCR130271515T
10-14-2016
State of Connecticut v. Tyriece S. Fuller Other Parties:
UNPUBLISHED OPINION
TRIAL COURT'S ARTICULATION RE DEFENDANT-APPELLANT'S MOTION TO WAIVE HIS RIGHT TO COUNSEL AT SENTENCING
John F. Blawie, J.
The trial court hereby submits this articulation of its denial of the defendant-appellant Tyriece Fuller's attempt to waive his right to counsel post-conviction, during an already delayed sentencing proceeding after trial. This case was tried to the jury before the undersigned, and the defendant was represented by capable counsel. The trial resulted in the defendant's conviction for his involvement in a criminal conspiracy to traffic in stolen firearms on the streets of Bridgeport, among other charges. This articulation will dispel all ambiguity, if indeed there is any, as it explains the complete factual and legal reasons why the trial court ruled as it did at the tail end of this protracted saga. In essence, the motion was not only untimely, the trial court was convinced that while Fuller was competent to stand trial and to be sentenced, the mentally ill defendant had demonstrated that he was simply not competent to represent himself at sentencing.
The defendant continued his practice of filing other " motions" with the court after he was sentenced, and also filed a federal lawsuit against multiple parties which has since been dismissed. They are not discussed herein, having played no part in the decision denying self-representation at sentencing.
Because the trial record may be freely consulted for all the particulars, those facts need not be recited here at length. Briefly, Fuller's convictions stemmed from his role in an active criminal conspiracy involving the unlawful street sale of stolen guns, firearms taken during a recent burglary of a Trumbull residence by one of Fuller's co-conspirators. The defendant was also found guilty of playing a role in a street sale of oxycodone in Bridgeport.
On July 23, 2014, the defendant was convicted of all four counts of a long-form information following a jury trial. Fuller was found guilty of three counts: conspiracy to commit theft of a firearm, in violation of General Statutes § § 53a-212 and 53a-48; conspiracy to violate the state drug laws, in violation of General Statutes § § 21a-277(a), 21a-279(a) and 53a-48; and conspiracy to commit larceny in the fourth degree, in violation of § § 53a-125 and 53a-48. Fuller was also convicted of a fourth count tried to the court alone, one that alleged the criminal possession of a firearm, in violation of General Statutes § 53a-217(a)(1).
Based upon all his guilty verdicts, Fuller was facing a significant jail sentence, one that included at least eight years mandatory to serve, with a possible exposure totaling 54 years of incarceration if the court decided to run all sentences consecutively. Fuller was eventually sentenced after six months of delays and continuances in the case after the jury's verdict. These delays in sentencing were largely brought on by demands by Fuller to recuse the trial court, to dismiss his trial counsel, and finally to act as his own attorney. Following a fair sentencing hearing on January 26, 2015, the defendant was sentenced to a total effective term of eight years to serve (the mandatory minimums), followed by eight years of special parole. This appeal followed.
The record shows that at every step of the process, starting with his arrest and initial presentment, as the defendant's case came before several different judges, both at GA #2 and Part A in the Fairfield Judicial District, Fuller was treated fairly, despite his repeated protestations and false allegations of a conspiracy by everyone against him to the contrary. In other words, every effort was made by the trial court to ensure that the defendant received a fair trial by jury and a fair sentencing hearing, with representation by extremely capable and experienced counsel throughout. It was only after he was convicted, by a motion dated September 10, 2014, while awaiting sentencing, that the defendant sought to represent himself pursuant to Practice Book § 44-3. While that single motion after trial is the primary focus of this articulation, the trial court's denial of the defendant's post-conviction motion may only be properly understood against the backdrop of the entire record. The complete transcripts of this case at the trial court level are spread over almost two years and many different appearances. That record may be reviewed in its entirety for further particulars, but the examples of Fuller's outbursts, arguments and evidence of his mental state quoted here will suffice to prove the trial court's point. Moreover, almost each time that Fuller spoke, it was over the advice of counsel. Whether due to his mental illness, or a desire to disrupt and delay these proceedings, or some combination of both, counsel's sound advice went foolishly unheeded. Like the defendant in State v. Connor, 292 Conn. 483, 973 A.2d 627 (2009), discussed more fully infra, " his conduct reflected a series of power struggles between the defendant and whomever else he's dealing with, including counsel and the court, and that he appeared competent to stand trial." (Internal quotes and brackets omitted.) Id., 491. In this articulation, the trial court makes the following findings of fact drawn from the extensive record in this case. This articulation also states the court's conclusions of law, with additional facts and circumstances discussed as they are germane to the legal issues now raised by the defendant on appeal.
Practice Book § 44-3 provides: " A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
The defendant was arraigned for these charges in GA #2 on April 12, 2013, at which time it was stated that he suffers from bipolar disorder (Tr. 4/12/13, p. 2). The record shows that Fuller was ably represented in the preliminary Part B proceedings by the public defenders in the GA. However, because of the potential for conflicts of interest with multiple clients facing conspiracy and related charges, the attorneys in the Bridgeport public defender's office could not continue to represent Fuller as well as the other co-conspirators charged in this case. Therefore, a few weeks later, after the case had been transferred to Part A, the court (Devlin, J.) provided a special public defender to Fuller in the form of a capable and experienced member of the criminal defense bar. Attorney Fred Ury accepted appointment to serve as Fuller's counsel, and filed his appearance on June 25, 2013. On October 16, 2013, counsel made a motion for a bond reduction, which was denied. At that bond hearing, it was represented that the defendant suffers from schizophrenia, and one of counsel's arguments for a reduced bond was to allow Fuller to be released from custody in order to receive better medication and more psychiatric care. (Tr. 10/16/13, p. 2.)
All transcript references (" Tr.") are citations to the record of this case at the trial court level by date and page number, transcripts prepared for purposes of this appeal.
On November 6, 2013, attorney Ury moved for a competency evaluation of the defendant, pursuant to General Statutes Section 54-56d. Following an examination of Fuller for that purpose, a hearing was held on Dec. 3, 2013. While it was the unanimous opinion of the clinical team that the defendant was currently competent to stand trial, Fuller's history of mental illness was confirmed. Specifically, there was testimony by Michael Genovese, the director of the Bridgeport office of the Department of Mental Health and Addiction Services, that Fuller had previously been " diagnosed with schizophrenia and bipolar disorder, maybe some anxiety and delusions" (Tr. 12/3/13, p. 4). The defendant had also previously been prescribed some anti-psychotic medications. (Tr. 12/3/13, p. 6). Before the court could make a finding of competency, the defendant spoke up and mentioned to Judge Devlin that he was currently on a self-imposed hunger strike. He also stated, " [M]aybe I'm delusional because I believe none of this stuff actually really happened, and what I have told Mr. Ury and the doctor is that the only reason I know what really is going on is because I read the police report. I have a copy of the warrant affidavit that I've read for the last eight months almost every day, because I don't know what is going on here." (Tr. 12/3/13, p. 15.) Attorney Ury represented to the court that was indeed working on the case for Fuller's benefit, and had hired a private investigator to assist him in preparing a defense to the allegations. The defendant was found competent to stand trial, and the case was continued.
As part of its pretrial disclosure to the defense pursuant to Practice Book § 40-11, the state provided attorney Ury with its evidence in this case. Some of the most incriminating evidence against the defendant came in the form of DVDs containing police surveillance videos of the defendant and his co-conspirators. Much of this footage was captured by a hidden body camera worn by an informant cooperating with the Statewide Urban Violence Cooperative Crime Control Task Force working out of the State Police barracks at Troop G in Bridgeport. However, apparently because of the way the discs were formatted, counsel initially experienced some difficulty in getting them to play on his computer equipment for the benefit of Fuller.
The case was called in for a pretrial conference on January 17, 2014. On that day, the defendant told Judge Devlin that the police reports and the videos showing him and his associates had been fabricated and falsified, and he also claimed that the evidence in his case had been tampered with (Tr. 1/17/14, p. 1). Fuller argued that this was also the same situation with the cases of other incarcerated inmates that he knew. To borrow a term from the civil arena, a defendant charged with criminal conspiracy was counterclaiming, alleging a conspiracy of his own by the authorities. Fuller made an irrelevant reference to " Sandy Hook" (presumably the school shootings), and to the court protecting " your star police group." (Tr. 1/17/14, p. 3. Fuller kept interrupting his attorney, and he also challenged the court, " Is it 'cause I'm black you can't believe me?
ATTY. URY: Your Honor
MR. FULLER: Or. is because I got mental health problems you can't believe?" (Tr. 1/17/14, p. 5.)
Judge Devlin patiently tried to explain for the defendant's benefit the procedures for asserting false evidence claims at trial. However, Fuller argued that the court was, " [P]laying with my psychological--it's unfair." (Tr. 1/17/14, p. 6.) At one point during that same hearing in which Fuller was debating the court and wanted to ask a question, Judge Devlin observed, " Well you haven't asked any questions; making speeches so far." (Tr. 1/17/14, p. 9.) It is significant that the defendant seemed confused when he was advised by the court that his case was being placed on the trial list, because the charges could not be resolved short of a jury trial (Tr. 1/17/14, pp. 11-12). As was typical of some of his various court appearances, Fuller repeatedly interrupted and talked over his attorney. (See Tr. 1/17/14, pp. 2, 3, 4, 5, 7, 8, 10.) The defendant made speeches on the record against the advice of counsel, even as the court attempted to call the next case on the pretrial docket. The defendant's in-court behavior was such that his attorney had to remind him that it was past time for him to stop, admonishing him, " Tyriece, please before something happens. Tyriece." (Tr. 1/17/14, p. 12.) This particular appearance ended with the marshals escorting the defendant from the courtroom, as Fuller is calling for " the FBI to investigate this." (Tr. 1/17/14, p. 12.)
The defendant continued to press his claims on the record about the false nature of the videos depicting him. Fuller's persistence in the face of no supporting evidence no doubt led Judge Devlin to make the following pretrial observation:
" THE COURT: Here's the thing, Mr. Fuller. The case has been pending since April of 2013, for a year. You've had two good lawyers. I'm sure they looked at this video scores of times. Plus, plus there was like four other guys arrested with you. Two of them already pleaded guilty. So this video's been examined by probably at least half a dozen lawyers. Nobody has come to me to say there's bald-faced lies in that thing. So you're seeing something different than these trained lawyers are seeing. And maybe it's true; I haven't looked at the video. It's on the trial list. That's it. The hearing's concluded today. Thank you, Mr. Fuller. Thank you for all your remarks today." (Tr. 4/30/14, pp. 7-8.)
Unlike Judge Devlin, the undersigned did in fact have the opportunity later at trial to review the inculpatory video evidence against the defendant. It was played and replayed for the jury's benefit. Contrary to the defendant's arguments, and in further corroboration of Judge Devlin's colloquy with him, the trial court saw no evidence of fabrication in the films.
After the defendant was found competent to stand trial, his case was continued on the pretrial docket until February 13, 2014. However, before the matter could be heard again, Fuller filed a grievance against his attorney in the interim. The defendant's action came only after he was made aware that his case was moving off the pretrial docket, and was now being scheduled for trial. The details of the defendant's claims against counsel are public. It may be found in the record of this case, but this is only because Fuller's complaint was attached as an exhibit to attorney Ury's motion to withdraw. In his handwritten complaint dated January 29, 2014, the defendant argues, among other things, " Counsel refuse to pursue the illegality of the defendant to accept the state plea bargain [sic] . . ." As attorney Ury's motion states, " His allegations make it impossible for me to continue to represent Mr. Fuller."
An entire chapter of the Practice Book (§ § 2-1 through 2-83, inclusive), is devoted to the conduct of attorneys. It sets forth in detail the mechanism for adjudicating grievance complaints before the Statewide Grievance Committee. No doubt because so many complaints against attorneys are filed that upon review prove to be groundless, the Practice Book strictly limits public disclosure of such records. In fact, any grievance complaint that has been dismissed is non-public. That means that without a finding of probable cause of attorney misconduct, all such complaints remain nonpublic records, per Practice Book § § 2-50(b)(3) and 2-50(e). Any such attorney who was the subject of a non-public, dismissed complaint is deemed to have never been subject to any disciplinary proceedings, and may swear to that fact under oath (Practice Book § 2-50(e)).
Judge Devlin conducted a hearing on counsel's motion to withdraw necessitated by Fuller's actions. Attorney Ury represented to the court, " This is the first time I've ever filed a motion to withdraw in an assigned case . . . I haven't done that in all the time that I've been a special public defender." (Tr. 2/26/14, p. 2.) At the time he made that statement, the defendant's attorney had been in practice for over 35 years, having been admitted to the Connecticut bar in 1977. When the state was asked by the court for its position on defense counsel's motion to withdraw, the prosecutor responded, " My only position is the case is on the trial list. I believe there's case law out there, maybe Marshall and maybe Drake for, you know, when someone files a grievance this late in the game against their lawyer. You know, I just don't want to set up a situation where Mr. Fuller is now empowered and whenever he hears what he doesn't like, he just grieves his attorney, particularly at this late stage of the game when the case I believe is ready to be called in for trial. So, you know, whatever you want to do, Your Honor." (Emphasis added; Tr. 2/26/14, p. 3.)
In State v. Marshall, the case cited by the state, the Appellate Court upheld the trial court's denial of counsel's motion to withdraw, a motion which was filed on the eve of the defendant's trial. Counsel had met with his incarcerated client, Joseph Marshall, in order to prepare for his trial, but like Fuller, Marshall refused to cooperate with his attorney and also filed a grievance against him. However, Marshall's case went forward without a substitution of counsel. The Appellate Court found no abuse of the trial court's discretion, because the defendant's actions permitted, " an inference that the objections were being interposed for the sake of delay." State v. Marshall, 114 Conn.App. 178, 192, 969 A.2d 202, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). Ultimately in this case, while the start of trial was indeed delayed, it was more important that a solid attorney-client relationship exist for the defendant's benefit. Judge Devlin granted attorney Ury's motion to withdraw. One week later, on March 3, 2014, a second special public defender, attorney Miles Gerety, filed his appearance on behalf of Fuller. Like his predecessor, Fuller's new lawyer was an eminently qualified and experienced defense counsel, one with years of major criminal trial experience. However, subsequent developments in this case would prove that the state's concerns about the defendant's motives were well-founded. The defendant continued to demonstrate a proclivity for launching specious attacks on his counsel's performance to suit his own purposes at various points in the case.
In preparing the case for trial, attorney Gerety apparently ran into many of the same problems with the defendant that attorney Ury had before him. For example, counsel once noted the defendant's ongoing (yet mistaken) belief about the state of discovery. In an effort to allay the defendant's concerns on that issue, the following transpired on the record during jury selection:
" ATTORNEY GERETY: I say we don't have witness statements and [the defendant] reads a police report that quotes a witness and believes that's a witness's statement. Well, it's a statement of the police; it's not a statement of the witness.
THE COURT: Yes, as you well know, it may in fact just be a recital of information that a police officer received from a third party. It does not necessarily imply as a matter of fact that a sworn statement was obtained from that person. But information from that person is into a police report, so yes. Do you believe there's any gaps in the disclosure you've gotten from the State in connection with this case?
ATTY. GERETY: No." (Tr. 6/5/14, p. 10.)
Fuller continued to remain dissatisfied with counsel, no doubt because of his earlier stated belief that " none of this stuff actually really happened." He repeatedly expressed his view that he was the victim of an ongoing conspiracy. As the defendant put it to Judge Devlin, " And now I'm a victim of a crime; I'd like to speak to the Victim's Advocate. I have mental health problems; I'd also like to speak to a mental health advocate. So I'm sure that I'm not receiving the proper legal assistance in this matter. Like, I don't know how to go about this." (Tr. 4/30/14, p. 10.) The defendant later filed another handwritten " motion, " this one captioned " Statement of the Case." In it, Fuller alleged the existence of a vast conspiracy directed against him personally, one which he claimed was intended to deprive him of his civil rights. Allegations ranged from both of his special public defenders up to that point, attorneys Ury and Gerety, to members of the Bridgeport State's Attorney's office who prosecuted his case, to the investigating officers of the State Police, and the Bridgeport, Stratford and Fairfield police departments. For good measure, Fuller also included Judge Devlin and the undersigned.
Voir dire in this case began on May 13, 2014. On the start of the second day of voir dire, the state attempted to amend the long-form information previously filed by charging the defendant with an additional count. Attorney Gerety made a motion to strike the new count as improper and untimely. Jury selection had already begun, and the amendment exposed the defendant to additional criminal liability if he were to be convicted by the jury. In its ruling from the bench granting the defendant's motion, the trial court stated, " This may be a matter of procedure, but it's an important matter of procedure for the defense and I--I can't allow it. I think it would be infecting the proceedings with error before we even begin the evidence, and I don't want to do that. I'd like to keep this case on track, let the jury reach a fair, just and unanimous verdict based on the evidence and the standard of proof. And I think if I allowed this amendment at this hour, it wouldn't matter how perfect the evidence portion of the trial went, the case would have a problem if there were to be an appeal from the conviction." (Tr. 5/19/14, p. 11.) The record demonstrates that despite the defendant's efforts to the contrary, the trial court's stated goal of keeping this case on track in order to achieve a fair, just and unanimous verdict was accomplished. For example, in order to keep the jury from learning that Fuller was a previously convicted felon, the parties agreed to try the fourth count, the criminal firearms count, to the court alone.
The day before evidence was scheduled to begin, the defendant next sought to act as " counsel" at trial. However, there is clearly no right under either the U.S. or Connecticut Constitution to dual representation. State v. Gethers, 197 Conn. 369, 384 n.17, 386-94, 497 A.2d 408 (1985). Nonetheless, as the court commented to counsel, " [H]e's on trial and his rights are paramount in my mind, without any denigration of the State's rights, but I want to make sure that the trial is fair from his perspective." (Tr. 7/14/14, p. 30.)
" THE COURT: Attorney Gerety, have you had a chance to consult with Mr. Fuller about his request to act as co-counsel?
ATTY. GERETY: Yes. I have explained my position that it's-- he's not qualified and its hybrid representation which Connecticut doesn't recognize, and that's been the law for a long, long time. He's very frustrated by that, disagrees with me and still wants to be co-counsel." (Emphasis added; Tr. 7/14/14, p. 31.)
It seems that the defendant had spent time while incarcerated picking up a few stray if not random legal concepts, but whatever smattering of information he had gleaned, whether due to his mental illness, lack of any formal legal education, a desire to delay and disrupt the proceedings, or some combination thereof, it did nothing to advance his cause. To the contrary, Fuller's outbursts were largely repetitive, baseless arguments or nonsensical irrelevancies. Despite his rejected effort to act as " co-counsel, " the defendant nonetheless continued his practice of filing more of his own " motions" with the clerk. These were documents that he had apparently either drafted himself, or copied from some unknown sources. Attorney Gerety reviewed all of it. Once again, because the court was ever conscious of its obligation to be fair to the defendant, counsel was specifically asked by the court if he considered any of Fuller's work product worthy of taking up. When counsel answered in the negative, the court advised the defendant as follows:
" THE COURT: It's hard in advance, sir, to rule on a lot of things. Plus as I said earlier, there is no provision for being co-counsel, so the motions are really not proper in the sense that you are not acting as an attorney in these proceedings. So--but I can assure you, sir, I take the protection of your rights very seriously. That's why I go out of my way to posit a scenario that's not going to happen, whereas Attorney Gerety not questioning the witnesses and not doing anything, you can sit there mute, you don't have a burden or obligation to prove anything. It's the State. They brought these charges, they have to prove them. I am sitting listening. I will be very attentive to the protection of your constitutional rights. If there's an issue here, your trained trial counsel, who's been doing this for decades, will pick up on it and make a lucid legal argument that has precedent in case law and statute, and I'll rule on it. I'm not guaranteeing that I will always agree with your lawyer, but I do know that he will make a well formulated legal argument with a valid basis in law and/or fact to be made. So I've looked at the motions, and they are somewhat duplicative of motions that have already been filed. They do look like some of them were copied from other attorneys' work product with the case header put on them, but I don't see anything in here that requires the Court to take action. Because I would take action sua sponte, even notwithstanding your lack of status as co-counsel because, again, I'm concerned about making sure this trial is fair." (Tr. 7/14/14, pp. 74-75).
" THE COURT: But I assure you, sir, going back to what I said earlier, that your rights are being protected here. You have a lot of rights under our constitution . . . They're not necessarily the rights you think you have though. There's a difference there, and I can explain it to you somewhat, but I can't understand it or comprehend it for you. So that's where we are." (Tr. 7/14/14, p. 81.)
On July 23, 2014, the jury returned its guilty verdicts in this case. As previously stated, the defendant's potential exposure totaled 54 years of incarceration, with eight years mandatory. The court ordered a presentence investigation report, and the case was originally scheduled for sentencing on Sept. 17, 2014. In the interim, Fuller filed several additional motions of his own which caused a delay in his sentencing. One motion dated Aug. 21, 2014 sought to dismiss attorney Gerety. In a second motion dated Sept. 10, 2014, the defendant sought to waive his right to counsel and to represent himself at sentencing under Practice Book § 44-3. In another motion also dated Sept. 10, 2014, the defendant sought the recusal of the trial court, a motion which included both the undersigned and Judge Devlin.
The case was heard again almost three months after the jury's guilty verdicts, on the rescheduled sentencing date of Oct. 17, 2014. At that time, the defendant's self-filed motion to recuse the judge was taken up first. As part of his long, rambling presentation, Fuller stated the following:
" MR. FULLER: The Judge doesn't recognizes [sic] my--my rights as a sovereign citizen of the United States and my Constitutional rights under the United--my Constitutional rights of the constitution and then it's amendments. The Judge has violated--let me get this right. Yes, the Judge doesn't recognize my sovereignty as--as a United States citizen and my rights under the Constitution of the United States. Under international law, the law of the flag, the ship owner who sends his vessel into a foreign court, gives notice by his flag to all who enters into contact with the shipmaster that he intends the law of the flag to regulate these contracts with--with this shipmaster that either submits to its operation or not to contract with them or his agents at all. That's Westrap (phonetic) versus the People, 57 N.E. 41, 45 185 Illinois, 133, 49 LRA 181, 76 AM S R 30. As me in my own state and me as my own vessel, I believe that I--I don't want to contract with y'all guys.
THE COURT: But, sir, admiralty law and characterizing yourself as a ship or a vessel; that has no basis in law or fact applicable to these proceedings.
MR. FULLER: So
THE COURT: In other words, what makes you think this admiralty law is applicable here?
MR. FULLER: Then what kind of Court is this?
THE COURT: This is a Court of--this is the Superior Court of the State of Connecticut with general jurisdiction to adjudicate all crimes, violations of the State Penal Code.
MR. FULLER: But what kind of Court is it; civil, criminal?
THE COURT: This is a criminal court but in a civil context. If you understand that, it's a court enacted by the civil authority of the State of Connecticut. But I've heard admiralty law claims before, and as best I can tell, they're based upon the fact that the flag behind me has gold fringe on it.
MR. FULLER: Yes.
THE COURT: And that, in the eyes of some, makes this a court of admiralty.
MR. FULLER: So
THE Court: But it is--I can assure you, sir, that the gold fringe on this flag is merely an ornamental use only, and does not convey a substantive legal right, nor deny you a substantive legal right you're entitled to. You are entitled to the rights that you have under the Connecticut and Federal Constitution. Unfortunately, they're not necessarily the rights you think you're entitled to, sir." (Tr. 10/17/14, pp. 13-15.)
The court then asked counsel for his position on the defendant's motion to recuse the judge, as follows,
" THE COURT: Attorney Gerety, the Practice Book § 1-23 provides that a motion to disqualify a judicial authority must be in writing, and be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification, and a certificate of counsel of record--that would be you--that the motion is made in good faith. Does--do you have any basis to believe there is a good faith basis for this motion, putting aside the fact there's no affidavit here or a certificate filed by you?
ATTY GERETY: Your Honor, I do not. I don't think that the motion is made by the defendant in bad faith. I just think that his psychiatric and mental health
MR. FULLER: I object. ATTY GERETY:--issues make it
THE COURT: Okay.
ATTY GERETY:--make him unable to understand that Your Honor gave him a fair trial, treated everyone in the courtroom with respect and was, if anything, very understanding of Mr. Fuller's situation and thoughtful.
THE COURT: All right.
ATTY GERETY: So without disparaging Mr. Fuller, who I think believes what he says, although it is irrational, I
MR. FULLER: I object.
ATTY GERETY:--don't think
THE COURT: Okay.
ATTY GERETY:--there is any good faith basis for the motion against the Court. (10-17-14, pp 16-17.)
When the defendant stated that he had not completed his argument, the court then allowed him to continue:
" MR. FULLER: You did make a judicial ruling about the fringe on the flag, right?
THE COURT: Well, I'm telling you as a matter of law that the fringe on the flag that's in this court and it might be in most if not all of the Courts of the Superior Court that I've sat in, does not in any way, shape or form convert this court into a court of admiralty. That's what I'm saying.
MR. FULLER: Oh.
THE COURT: I am not making any other pronouncements about the law beyond what is necessary to adjudicate the issue in front of me. I--you're not going to catch me talking about admiralty law because I really don't know a lot about it. I do know criminal law and procedure, however.
MR. FULLER: Then
THE COURT: And the standards that I have to employ in ruling on these motions.
MR. FULLER: There--is there a--so this is a criminal, civil court if I'm not mistaken.
THE COURT: This is a criminal court that's been created by the civil authority of the State of Connecticut. It's not a military court. When I use the term, civil, I mean it as opposed to a--a military tribunal.
MR. FULLER: So I thought all courts under this sixth amendment, I believe, supposed to be common law. Is this a common law court?
THE COURT: Well, sir, we're dealing now with a motion that you filed to recuse the Court. Common law refers to a body of case law versus statutory law. We--we use both in adjudicating disputes because a statute is--states things in generalities, and a case applies that statute to a specific circumstance. And if your circumstance is sufficiently similar to a prior case on point, the Court will consider it in deciding how to rule. But to say, are we a common law court versus a--we're--we were created by statute. But to say, are we a common law court is to misstate the issue. We use common law authority in making decisions, but I don't want to be drawn into a debate on semantics about
MR. FULLER: Okay.
THE COURT:--what kind of a court we are.
MR. FULLER: I object.
THE COURT: I believe I have valid authority to act and I have--I--I take your motion seriously. That's why I'm hearing you on it, sir. I do not want to proceed in any manner or any matter in which my impartiality may reasonably be questioned. That's the emphasis. It has to be reasonable, so
MR. FULLER: I object.
THE COURT:--I would disqualify myself in any proceeding where my impartiality might reasonably be questioned. So I want you to finish your argument, and then I'm going to hear the State's argument.
MR. FULLER: I object to what you just said and to disqualify you from this proceeding, once again, should be, rational since some of the points of my case is admiral. It does have to do with admiral law.
THE COURT: Admiralty law.
MR. FULLER: Sorry.
THE COURT: Okay.
MR. FULLER: Admiralty law. Those things that I was just speaking about.
THE COURT: All right.
MR. FULLER: And the question is, is where is the 1099 OID and--form and a--and a 1096 form from the prosecution? I never seen such form.
THE COURT: I'm not familiar with those forms, sir.
MR. FULLER: It's a--it's a form for the financial transaction of this proceeding." (Tr. 10/17/14, pp. 18-21.)
The defendant also went on to make a false accusation against the court, one that is completely unsupported by the trial record. It will not be found in any transcript of these proceedings, because it never occurred. Along with questions about unknown financial transactions, it provided further evidence of his delusionary thinking, and given the defendant's significant exposure after conviction, an inability to proceed competently without the benefit of counsel at sentencing:
" MR. FULLER: You made a comment about me being three fourths of a man at--at one point, if we bring up the transcripts. And I believe that back in slavery times, a man--a black man was three fourths of a white man, so there had to be two black man [sic] that equal one white man. I don't know if that's what Your Honor's meant by that.
THE COURT: I recall no such statement, sir.
MR. FULLER: That's what
THE COURT: And the record will stand--it's beyond our power to add or detract from at this point, sir.
MR. FULLER: I believe that was the
THE COURT: You're entitled to your beliefs, but
MR. FULLER: Maybe that
THE COURT:--you're not entitled to your own facts.
MR. FULLER: And I believe that the Court--this Court shouldn't use the law to break the law. That's
THE COURT: I don't plan on it, sir.
MR. FULLER: That's
THE COURT: I agree with that wholeheartedly. But be that as it may, I do find that the motion to recuse the Court has no basis in law or fact, so that motion is denied." (Tr. 10/17/14, pp. 29-30.)
The court next turned to the defendant's motion to dismiss attorney Gerety. By way of background, on July 18, 2014, the trial record shows that just before the defense rested at the conclusion of the state's case and before closing arguments, the court thoroughly canvassed the defendant regarding his election not to testify. The defendant calmly stated that he was satisfied with attorney Gerety's advice, and he further indicated when asked directly that he had no questions for the court. The court thereafter included a " no adverse inference" clause regarding the defendant's election in its jury instructions. Fuller's unruffled demeanor at the time of the court's canvass completely contradicts and calls into serious doubt the wild claims the defendant asserted several weeks later about the events of that same day. The allegations came in a handwritten motion the defendant filed several weeks after he was convicted of all charges and was awaiting sentencing. In the defendant's August 21, 2014 " motion to dismiss counsel, " he asserted that the only reason he did not testify at trial was because he was " assaulted" and " intimidated and coerced" by attorney Gerety on July 18th, the very day of the court's canvass of him on that issue.
As he had done on prior occasions, the defendant repeatedly interrupted both counsel and the court, which finally prompted the court to say,
" THE COURT: I need to be in charge here, thank you. Your attorney had requested additional time to assemble certain records that he believed would be effective mitigation arguments at sentencing. The Court continued this case for that purpose. So we are quite some time now from the actual jury verdict . . . I saw nothing in the presence of the Court that would support your contention that you were assaulted by counsel. I saw nothing of that kind, nor did I see disparaging remarks of counsel that would have affected the integrity of these proceedings, or the outcome of the jury verdict. So whether or not you had private conversations with counsel that you characterize as disparaging, or that you had disagreements over how to proceed, that's a different issue for the Court. I can't get into the attorney client relationship, and the give and take that occurs when a client confers with counsel." (Tr. 10/17/14, pp. 30-31.)
When it came time to address the defendant's motion to dismiss his attorney, the following transpired:
" THE COURT: You have an attorney representing you right now, sir, and I want to determine whether that's appropriate under all of the circumstances, or if there's been an irretrievable breakdown in that collaborative relationship that's necessary for effective representation . . .
ATTY GERETY: Your Honor, I've been a lawyer for what, 36 years, I've tried many cases. I have dealt with a lot of clients who suffered from mental illness of one sort or another.
MR. FULLER: I object.
ATTY GERETY: And I think that the way Mr. Fuller links ideas and fixates on things is pretty good evidence that he has some significant problems. Throughout representing him, I have tried my hardest to do what would be best for him as a lawyer." (Tr. 10/17/14, p. 33.) Attorney Gerety also stated his belief that the defendant suffered from " fixed delusions" about his case (Tr. 10/17/14, p. 36). Especially in light of the prior competency evaluation of the defendant, the trial court was justified in relying on these factual and legal representations by counsel about his client. See, e.g., Collins v. Lewis, 111 Conn. 299, 305, 149 A. 668 (1930); see also State v. Smith, 289 Conn. 598, 609, 960 A.2d 993 (2008). Counsel asked to be relieved from representation, and for a new special public defender to be appointed for purposes of sentencing. Before the court allowed attorney Gerety to withdraw, it advised the defendant as follows:
" THE COURT: I assure you, sir. What I presided over was an adversarial jury trial in the best legal sense of the term. There was--there was no collusion in this Court's presence. You were adequately defended by Attorney Gerety, and the jury saw the evidence." (Tr. 10/17/14, p. 21.)
The defendant's sentencing was continued again for new counsel to be assigned. When the defendant objected, the court after much colloquy told him, " I can explain the circumstances to you, sir, but I can't comprehend them for you." (Tr. 10/17/14, p. 46.) The court took no formal action on the defendant's motion to represent himself at that time. The court did not conduct the canvass outlined in Practice Book Section 44-3, because that canvass is designed to help the court answer the threshold question of whether a criminal defendant is minimally competent to make the decision to waive counsel; see, State v. Braswell, 318 Conn. 815, 829, 123 A.3d 835 (2015), and the court already knew the answer. The court firmly believed that the defendant had already demonstrated that he was not competent to be sentenced without counsel. The PSI was prepared, and the court held out hope that a new attorney, a third special public defender, would be able to work effectively with the defendant.
" Defendants claiming to be 'sovereign citizens' assert that the federal government is illegitimate and insist that they are not subject to its jurisdiction. The defense has no conceivable validity in American law." (Internal quotation marks omitted.) U.S. v. Jonassen, 759 F.3d 653, 657 n.2 (7th Cir. 2014), cert. denied, 136 S.Ct. 152, 193 L.Ed.2d 114. Such nonsensical arguments as the defendant made neither deserved much thought, nor required it. However, it is important to emphasize that Fuller's request to represent himself was not denied by the trial court solely because he adhered to such irrational beliefs without foundation. It was not only untimely, there was also a documented history of mental illness, and the court had no desire to become an accessory to the propagation of a sentencing farce by such a self-represented party. By the date of the filing of Fuller's motion for self-representation during an already postponed sentencing hearing, his jury trial had ended three months earlier, and the court had the benefit of many different interactions with him extending back over a five-month period, starting with the voir dire. With a confirmed history of mental illness, and facing a potential exposure to incarceration of up to 54 years, the defendant's request was counterproductive, as he had already demonstrated that without capable counsel, he could bring to bear no amount of sound judgment equal to the import and gravity of the task at hand. On October 21, 2014, attorney Donald Cretella, Jr. filed his appearance in lieu of attorney Gerety, to serve as the third special public defender for purposes of representing the defendant at sentencing.
January 26, 2015 was the date of the defendant's actual sentencing, and attorney Cretella was prepared. The defendant interrupted the proceedings at the outset, and he again demanded to represent himself. He falsely told the court that as to attorney Cretella, who was standing beside him at counsel table in the courtroom ready to proceed, " He quit yesterday." (1-26-15, p. 4.) Fuller cited a case that he called " Faretta v. Washington " [sic]. The defendant's objection was overruled, and the court turned to the long-delayed sentencing, stating, " Because Mr. Fuller needs to understand, notwithstanding all of his many post-conviction motions and statements, I will not penalize him for exercising his Constitutional right to a trial, or for any of the statements he's made here today. I am focusing on his prior record and the nature and circumstances of the instant offense, but I also have to consider his potential for rehabilitation, because that's my ultimate goal here." (Tr. 1/26/15, pp. 12-13.)
The defendant's mother also addressed the court at sentencing. She confirmed his mental illness while urging leniency, and described the difficult circumstances of Fuller's childhood and upbringing. As part of his argument in mitigation of sentence, counsel referenced the defendant's turbulent mental health history, as follows:
" ATTY. CRETELLA: I guess the two main things that really are significant in terms of why Mr. Fuller may have ended up here today is; one, the murder of his father that would take its toll on anyone, and I think it's taken its toll on Mr. Fuller. And I don't know if it's the direct result or exacerbate it, but according to Mr. Fuller in his presentence report, and I have no reason to doubt, that he has been diagnosed with schizophrenia, bipolar, delusional grandeur, manic depression, major depressive disorder, PTSD and anxiety. I think a majority of Mr. Fuller's problems probably come from these diagnoses--the manifestation of these diagnoses.
THE COURT: Well, the other thing that struck the Court is even assuming all of those diagnoses at different times are valid, his inability or his unwillingness to follow up with aftercare treatment, take prescribed medications and avoid using street drugs; those just throw gasoline on a fire, in the Court's opinion." (Tr. 1/26/15, pp. 14-15.)
When it came time for the defendant to exercise his right of allocution before sentencing, he sought to minimize his involvement in the criminal conspiracy that he was convicted of participating in. Fuller again attacked the integrity of the police investigation and counsel's performance. Near the end of the defendant's remarks he stated, " My question--all I want to get from the Court is that I have mental health problems. I wish to go into like a mental health program. I would like to go to a hospital." (Tr. 1/26/15, pp 29-30.) As previously stated, Fuller was exposed to a total of 54 years to serve as a result of his convictions. However, the actual sentence the court imposed in this case only added up to the mandatory minimums--8 years--that the legislature required the defendant to serve for having been found guilty by a jury of violating these different provisions of the Penal Code. The court's sentencing remarks are part of the record, and they need not be repeated herein. The defendant could have received no lesser sentence of incarceration, self-represented or otherwise. It is respectfully submitted that to remand this matter back to the trial court for a new sentencing hearing, one in which the defendant could in fact be allowed to represent himself, would not only ignore his demonstrated manifestations of mental illness that rendered him incompetent to act without counsel, it would elevate the defendant's dilatory, post-conviction demands for self-representation over his illness, as well as every other valid legal consideration.
Undoubtedly, the " Faretta v. Washington " case that the defendant mentioned was actually the case of Faretta v. California, 422 U.S. 806, 814-15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). That case stands for the proposition that the right to represent one's self, like the companion right to counsel, is secured by the U.S. Constitution. Id., 814-15. However, like all constitutional rights, a defendant's right of self-representation is subject to exceptions, and those exceptions, which have also been discussed by our Supreme Court, proved to be controlling in this particular case. " Indeed, the United States Supreme Court recognized in Faretta v. California, supra, 422 U.S. 806, that there are three grounds for denying a defendant his right to self-representation: '(1) he makes the request in untimely fashion such that granting it would disrupt the proceedings . . . (2) the defendant engages in serious obstructionist misconduct . . . and (3) the defendant has not knowingly and intelligently waived his right to counsel . . . With respect to the timeliness ground . . . [d]istinct considerations bear upon requests made after a trial has begun . . .' " (Citations omitted; emphasis in original.) State v. Flanagan, 293 Conn. 406, 431, 978 A.2d 64 (2009).
" Accordingly, we conclude 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. 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., 433. In this case, the trial court considered all three factors articulated in Flanagan as they applied to the defendant's behavior. When the court considered not only the potential disruption of the proceedings occasioned by the defendant's request, but also his demonstrated mental illness, it did not engage in a § 44-3 canvass.
The U.S. Supreme Court later had occasion to address the specific issue of a defendant's mental competency as it impacts the right of self-representation, which is something that the Faretta court did not discuss. That opportunity came in the case of Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), which made it clear that there is indeed, " a mental-illness-related limitation on the scope of the self-representation right." Id., 171. Represented by court-appointed counsel in Indiana state court, the defendant Ahmed Edwards was convicted of various charges (including attempted murder) at two separate trials (a trial followed by a retrial). Edward's mental condition was the subject of three different competency evaluations, but he was ultimately found competent to stand trial both times. Before both trials, Edwards sought to represent himself, but his motions were denied by the trial court. Like the defendant Fuller, Edwards was found to be mentally competent to stand trial with the assistance of counsel. However, Edwards was also found by the Indiana trial court to be not mentally competent to conduct any proceedings by himself, without an attorney. Edwards appealed his convictions, and argued that the trial court's refusal to allow him to represent himself deprived him of his constitutional right of self-representation under Faretta .
The U.S. Supreme Court rejected the defendant's claim, and it found no error in requiring Edwards to have trial counsel. It cited with approval the amicus brief filed by the American Psychiatric Association, a brief which was filed in support of neither party to the appeal. The medical doctors made a cogent point:" '[D]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant's ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant." Indiana v. Edwards, supra, 554 U.S. at 176. The opinion further recognizes that because of the trial court's opportunity to personally interact with defendants, trial courts " will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant. We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Id., 177-78.
Shortly after Indiana v. Edwards was handed down in 2008, the Connecticut Supreme Court took up the same issue in State v. Connor, 292 Conn. 483, 973 A.2d 627 (2009). " [I]n accordance with the reasoning of Edwards, we do not believe that a mentally ill or mentally incapacitated defendant who is competent to stand trial necessarily also is competent to represent himself at that trial. Accordingly, in the exercise of our supervisory authority over the administration of justice, we conclude that, upon a finding that a mentally ill or mentally incapacitated defendant is competent to stand trial and to waive his right to counsel at that trial, the trial court must make another determination, that is, whether the defendant also is competent to conduct the trial proceedings without counsel." (Emphasis omitted; footnote omitted.) State v. Connor, 292 Conn. 483, 518-19, 973 A.2d 627. " [W]e do not believe that it is prudent, at least at this time, to attempt to articulate a precise standard for determining whether a mentally ill or incapacitated defendant who has been found competent to stand trial also is competent to represent himself at trial. For present purposes, it suffices to say that the trial court should consider all pertinent factors in determining whether the defendant has sufficient mental capacity to discharge the essential functions necessary to conduct his own defense, including the defendant's ability to relate to the court or the jury in a coherent manner." Id., 530 n.32. The court also cited an older U.S. Supreme Court opinion, Massey v. Moore, 348 U.S. 105, 108, 75 S.Ct. 145, 99 L.Ed. 135 (1954), for the proposition that, " [o]ne might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel." State v. Connor, supra, 292 Conn. 526.
" The standard for determining competency to stand trial is whether one is able to understand the proceedings against him and to assist in his own defense . . . This test assumes that the defendant will have representation and that he will be required only to assist in his defense. Certainly more is required when the defendant is to actually conduct his own defense and not merely assist in it . . . Simply put, it is one thing for a defendant to have sufficient mentation to be able to follow the trial proceedings with the aid of a lawyer, and another to be able to represent himself . . . Moreover, when a mentally ill or incapacitated defendant is permitted to represent himself at trial despite his or her lack of competence to do so, the reliability of the adversarial process, and thus the fairness of the trial itself, inevitably is cast in doubt. Although we acknowledge that the right of self-representation exists primarily to affirm the dignity and autonomy of the accused, we believe that that interest is outweighed by the interest of the state, the defendant and the public in a fair trial when, due to mental illness, the defendant is incompetent to conduct trial proceedings without the assistance of counsel." (Citations omitted; brackets and internal quotation marks omitted.) Id., 526-27.
In State v. Coleman, 83 Conn.App. 672, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S.Ct. 2290, 161 L.Ed.2d 1091 (2005), the Appellate Court addressed the issue of a defendant's waiver of counsel. " A defendant has knowingly and intelligently waived the right to counsel if the trial judge finds that he (1) [h]as been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled; (2) [p]ossesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; (3) [c]omprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) [h]as been made aware of the dangers and disadvantages of self-representation." (Internal quotation marks omitted.) State v. Bangulescu, 80 Conn.App. 26, 42-43, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003); see also Practice Book § 44-3.
" [T]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused . . . This important decision rests within the discretion of the trial judge . . . Our task, therefore, is to determine whether the court abused its discretion in allowing the defendant to discharge his counsel and to represent himself." (Citation omitted; internal quotation marks omitted.) State v. Coleman, supra, 83 Conn.App. 685. The record shows that not only was the motion untimely at best, the mentally ill defendant neither appreciated the consequences of self-representation, nor did he possess a sufficient comprehension of the true nature of these criminal proceedings in order to proceed competently without counsel.
In State v. Pires, 310 Conn. 222, 77 A.3d 87 (2012), the defendant was represented by counsel and was convicted of murder following a jury trial. At the sentencing hearing, the defendant requested to waive counsel and represent himself, which the trial court denied, a decision which was affirmed on appeal. " Trial courts' decisions to deny requests for self-representation that are made after the commencement of trial are reviewed for abuse of discretion." Id., 253. " After the commencement of a trial, the right of self-representation, is sharply curtailed . . . and a trial court faced with such an application must balance the legitimate interests of the defendant in self-representation against the potential disruption of the proceedings already in progress." (Citations omitted.) Id., 252. The Supreme Court in Pires held that the trial court did not abuse its discretion by denying the defendant's request to proceed to sentencing without counsel. Moreover, it was held not to be an abuse of discretion for the trial court not to canvass the defendant pursuant to Practice Book § 44-3. " [A] trial court properly may deny a request for self-representation when it is merely a tactic for delay . . . or to frustrate the orderly administration of justice . . . or is an insincere ploy to disrupt the proceedings . . ." (Citations omitted; internal quotation marks omitted.) State v. Jordan, 305 Conn. 1, 22, 44 A.3d 794 (2012). " To date, courts have recognized four instances in which a court may deny a defendant's timely request to represent himself. A defendant's request may be denied when a court finds that the defendant is not competent to represent himself . . . or that he has not knowingly and intelligently waived his right to the assistance of counsel . . . A court can also deny such request because it was made for dilatory or manipulative purposes . . . or because the defendant's behavior is disruptive or obstructive." (Citations omitted.) State v. Braswell, 318 Conn. 815, 829, 123 A.3d 835 (2015).
The court spent many days on this matter with the defendant, and it was able to closely observe his behavior and demeanor over that timeframe. Coming when it did in this case after conviction and on the day of sentencing, Fuller's attempts were but the latest manifestation of inordinate delay, and of a piece with his prior (unsuccessful) attempts to manipulate the system. His demand was unjustified, and it was denied accordingly, as it interfered with the fair administration of justice. Whether Fuller's motive behind his motion was grounded in dilatory tactics, or was the deluded fruit of his mental illness that rendered him incompetent to represent himself at sentencing, or both, it is admittedly difficult to fully and definitively discern. While the trial court leans toward the latter view, reasonable inferences tending to establish both grounds may be gleaned from the record. Based upon the totality of Fuller's interactions with the court, as well as his interactions with counsel and court staff, the court simply did not deem the defendant capable of competent self-representation. Moreover, no reasonable jurist having sat through these proceedings could reasonably conclude that this mentally ill man was capable of competent self-representation. Coupled with the seeming determination of the defendant to delay the proceedings, all of these factors counseled in favor of proceeding with an attorney to represent Fuller at the time of his long postponed sentencing, not without one.
(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled; (2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; (3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) Has been made aware of the dangers and disadvantages of self-representation."