State v. Hamilton

636 A.2d 760, 228 Conn. 234, 1994 Conn. LEXIS 5

• Court: Supreme Court of Connecticut
• Decided: January 11, 1994
• Docket: 14704
• Status: Published

Opinions

Peters, C. J.

The certified issue in this criminal appeal is the proper standard for appellate review of a trial court’s denial of a motion for continuance to retain private counsel. The state charged the defendant, William Hamilton, Jr., with robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), attempted assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2), and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). A jury found the defendant guilty as charged and the trial court sentenced him to an effective term of imprisonment of thirty-five years.¹

The defendant appealed to the Appellate Court, which reversed, in part, the judgment of the trial court, and remanded the matter for a new trial on the charge of carrying a pistol without a permit. State v. Hamilton, 30 Conn. App. 68, 618 A.2d 1372 (1993).² The Appellate Court rejected, however, the defendant’s claim that the trial court had abused its discretion in denying the defendant’s request for a continuance to enable him to pursue the possibility of obtaining private counsel. We granted the defendant’s petition for certification, limited to the issue of the propriety of the standard used by the Appellate Court in reaching this conclusion.* ³ Although we disagree with the manner in which the Appellate Court articulated the applicable standard, we concur in its determination that the trial court did not abuse its discretion. We therefore affirm the judgment of the Appellate Court.

The decision of the Appellate Court recites the pertinent facts insofar as they relate to the request for a continuance. “A special public defender was appointed on October 30, 1990, to represent the defendant. The record discloses no attempt to substitute counsel between that date and August 1,1991, when [the] trial began. The defendant, who was seventeen years old at that time and not free on bond, had his father, who was present, appointed as guardian, and the jury selection process began. Following the luncheon recess, the defendant’s father failed to return to court. The court then summoned a family relations officer and appointed her guardian ad litem for that day, after it was determined that efforts to reach the defendant’s father were unsuccessful. Jury selection was completed that same day and the matter was continued for the taking of evidence on August 5, 1991.

“The defendant’s father again failed to appear on August 5, so the court appointed a second family relations officer as the defendant’s guardian ad litem for purposes of the trial. The defendant’s counsel then sought a continuance because the defendant had told him that his cousin, Jimmy Cooper, had an appointment that morning with a local attorney whom the defendant hoped to retain as private counsel. The court was informed that the public defender’s office had verified this by calling Cooper and obtaining the name of the attorney being contacted. The court recessed in an attempt to get that attorney into court, and determined that although the defendant’s cousin indeed had an appointment that morning, the attorney in question had canceled the appointment. The court also determined that Cooper . . . had been represented by that attorney in the past, and that the attorney’s schedule might make it difficult for him to handle the defendant’s case.

“The court denied the defendant’s request for a continuance, stating: ‘You have a question of continuance for the purpose of counsel. And the only viable, articulable fact that you can point to whatsoever, is a phone call from a person named Cooper to the office of Gulash. The rest of the information clearly demonstrates to the court that this accused is under bond for a case he has previously been convicted of. I learn now he is under a sentence of twenty-five years. He has a bond in this case which has never been posted. [H]e has consulted with [private counsel] at the outset of his difficulties and has seen fit not to retain [such counsel]. There is no indication there is any ability to do so. No representations have been made to that other than Cooper has money but it would be for me to find out and for them to know. Well, this court does not have to go to that burden. The burden is on the defendant to demonstrate an ability. That not being demonstrated in this court on behalf of this application, the court finds no reasonable basis for this court to take this jury, which has been selected and returned here for duty and put them on a shelf and to close down a court of this state on the bold assertion that somebody named Cooper may or may not get a lawyer for the accused. No indication presently [is] obtainable from the lawyer that he is even available to take it on, never mind whether or not compensation required could be met by the parties. It is not a reasonable expectation on this court’s [part]. I could not conclude that that is a reasonable request.’ ” State v. Hamilton, supra, 81-82.

In his appeal to the Appellate Court, the defendant contended that the “denial of his request for a continuance constituted an abuse of discretion and violated his constitutional rights to due process under the sixth and fourteenth amendments to the United States constitution and article first, § 8, as amended, of the Connecticut constitution.” Id., 80-81. The defendant also argued that the trial court’s denial of his request for a continuance constituted an abuse of discretion “because it deprived him of his right to an attorney of his choice under the sixth amendment to the United States constitution.” Id., 83. The Appellate Court noted, however, that “[t]he defendant ha[d] shown no specific prejudice to his defense as a result of this denial. There was no claim that counsel of record was unprepared to go forward. The defendant at no time claimed ineffective assistance of counsel.” (Emphasis added.) Id., 84. Relying on the defendant’s failure to show that the denial of his request for a continuance had demonstrably prejudiced his ability to defend himself, the Appellate Court concluded that the defendant had failed to establish that the trial court had abused its discretion. Id., 85.

I

We granted the defendant’s petition for certification to determine whether the Appellate Court had applied the proper standard in its review of the trial court’s denial of his request for a continuance. The defendant maintains that the Appellate Court gave undue weight to the absence of a showing of prejudice as manifested by the unchallenged adequacy of his representation by assigned counsel. He urges that such considerations are improper on a direct appeal because our holding in State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), requires him to litigate any question relating to the ineffective assistance of his counsel in collateral proceedings by way of habeas corpus. We agree that the standard articulated by the Appellate Court improperly blurred the factors that enter into direct appellate review of the denial of a continuance.

The basic principles that govern continuances at trial are not in dispute. Once a trial has begun, neither a defendant’s right to due process nor his right to be represented by counsel of his choice entitles him to a continuance upon demand. Sekou v. Warden, 216 Conn. 678, 686-89, 583 A.2d 1277 (1990) (trial day motion for continuance); State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986) (motion for continuance during jury selection); State v. Beckenbach, 198 Conn. 43, 47-50, 501 A.2d 752 (1985) (trial day motion for continuance). “ ‘In order to work a delay by a last minute [replacement] of counsel there must exist exceptional circumstances.’ ” State v. Drakeford, 202 Conn. 75, 83-84, 519 A.2d 1194 (1987). “The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion.” State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987).

A reviewing court is bound by the principle that “[e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980); State v. Beckenbach, supra, 47. To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. State v. Beckenbach, supra. “ ‘There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. ’ ” (Emphasis added.) Id., 47-48.

In appellate review of matters of continuances, federal and state courts have identified multiple factors that appropriately may enter into the trial court’s exercise of its discretion. Although the applicable factors cannot be exhaustively catalogued, they generally fall into two categories. One set of factors focuses on the facts of record before the trial court at the time when it rendered its decision. From this perspective, courts have considered matters such as: the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request; the likelihood that the denial would substantially impair the defendant’s ability to defend himself; the availability of other, adequately equipped and prepared counsel to try the case; and the adequacy of the representation already being afforded to the defendant. United States v. Cicale, 691 F.2d 95, 106-107 (2d Cir. 1982), cert. denied, 460 U.S. 1082,103 S. Ct. 1771, 76 L. Ed. 2d 344 (1983); Linton v. Perini, 656 F.2d 207, 210 (6th Cir. 1981), cert. denied, 454 U.S. 1162, 102 S. Ct. 1036, 71 L. Ed. 2d 318 (1982); United States v. Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979); Gandy v. Alabama, 569 F.2d 1318, 1324 (5th Cir. 1978); United States v. Rastelli, 551 F.2d 902, 905-906 (2d Cir.), cert. denied, 434 U.S. 831, 98 S. Ct. 115, 54 L. Ed. 2d 91 (1977); Sekou v. Warden, supra, 686-89; State v. Beckenbach, supra, 47-50. Another set of factors has included, as part of the inquiry into a possible abuse of discretion, a consideration of the prejudice that the defendant actually suffered by reason of the denial of the motion for continuance. See, e.g., Linton v. Perini, supra, 209-10; State v. Aillon, supra, 395; State v. Beckenbach, supra, 50-52; State v. Stanley, 197 Conn. 309, 312-13, 497 A.2d 46 (1985). For purposes of assessing actual prejudice, the focus is on the adequacy of the defendant’s legal representation subsequent to the trial court’s ruling, as distinguished from its likely adequacy as determined by the trial court at the time of its ruling on the motion for continuance.

At the time when the decision to grant or deny a continuance is made, the trial court cannot know with certainty the caliber of the legal representation that will subsequently be afforded to the defendant if the motion for continuance is denied. The subsequent performance of counsel is less relevant to the determination of whether the trial court abused its discretion than to a determination of whether an erroneous denial of a continuance was harmful to the defendant. Although our past rulings on this question have not been entirely consistent; compare State v. Beckenbach, supra, 47-49 (preruling factors considered), with Sekou v. Warden, supra, 689 (competence of counsel’s performance considered); see State v. Jones, 22 Conn. App. 303, 307, 577 A.2d 293 (1990) (competence of counsel and preruling factors considered); the decision of the Appellate Court in this case affords us the opportunity to clarify that an appellate court should limit its assessment of the reasonableness of the trial court’s exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.

In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis. If a claim on appeal is nonconstitutional in nature, “the burden of establishing that harm resulted from a trial court error rests on the appellant.” State v. Truppi, 182 Conn. 449, 465, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); State v. Beckenbach, supra, 49. When a continuance has been requested to obtain new counsel after a trial has begun, the defendant must show, on appeal, that the improper denial of the motion demonstrably prejudiced his ability to defend himself.⁴ State v. Beckenbach, supra, 49-52. For that determination, trial counsel’s subsequent performance is highly relevant.⁵

It is with respect to an inquiry into harmful error that an apparent conflict with our decision in State v. Lee-can, supra, arises. Leecan delineates the sole appellate procedure for raising constitutional claims of ineffective assistance of counsel, and requires that all such claims be raised in a habeas corpus proceeding where a full evidentiary hearing may be held. To the extent that our cases imply that a claim of ineffective assistance of counsel must be raised to establish that a trial judge has committed reversible error in denying a motion for continuance to obtain new counsel, they appear to conflict with the mandate of Leecan.

Upon closer analysis, however, the conflict disappears. We distinguish between two types of cases: those in which a constitutional right has been implicated by a denial of a continuance, and those of a nonconstitutional nature. In the former class of cases, when a trial court has unreasonably denied a continuance to obtain new counsel, and that error deprives a defendant of his constitutional right to counsel of choice, prejudice would be presumed. See, e.g., United States v. Mendoza Salgado, 964 F.2d 993, 1016 (10th Cir. 1992) (it is “[o]nly when the trial court unreasonably or arbitrarily interferes with a defendant’s right to counsel of choice [that] ... a conviction cannot stand, ‘irrespective of whether the defendant has been prejudiced’ ”) (emphasis in original); Linton v. Perini, supra, 210-12 (where trial court abused its discretion in denying continuance and, in doing so, also violated defendant’s right to counsel of choice, harmless error test did not apply); United States v. Burton, supra, 491 n.19, 498 (same); State v. Mebane, 204 Conn. 585, 595, 529 A.2d 680 (1987), cert. denied, 484 U.S. 1046, 108 S. Ct. 784, 98 L. Ed. 2d 870 (1988) (“a per se rule of automatic reversal . . . properly vindicates the denial of the defendant’s fundamental constitutional right to assistance of counsel guaranteed by the sixth amendment”); People v. Washington, 195 Ill. App. 3d. 520, 525-28, 552 N.E.2d 1067, appeal denied, 133 Ill. 2d 570, 561 N.E.2d 705 (1990) (no showing of prejudice required where denial of continuance deprived defendant of representation by retained counsel).⁶ In the latter class of cases, i.e., claims of a nonconstitutional nature, the defendant must prove both an abuse of discretion and harm in order to establish reversible error. See, e.g., State v. Walker, 215 Conn. 1, 10, 574 A.2d 188 (1990) (when the denial of a continuance is appealed, “[i]t must be shown that the trial judge [1] acted arbitrarily and [2] substantially impaired [the] defendant’s ability to defend himself, before an appellate court will [reverse a trial court for an abuse of its] discretion. . . .”) (internal quotation marks omitted); State v. Williams, 200 Conn. 310, 320-21, 511 A.2d 1000 (1986) (on appeal from a denial of motion for continuance under abuse of discretion standard, reviewing court assessed both the reasonableness of the denial and prejudice resulting therefrom); see also State v. Beckenbach, supra (involving appeal of trial court’s denial of motions for continuance to allow counsel of choice to try case, in which the defendant alleged no constitutional violations by virtue of that denial).⁷ Because of the twofold nature of this burden, a defendant’s failure to prove that the trial court abused its discretion, by arbitrarily denying a continuance, is dispositive of the appeal; a reviewing court need not reach the question of harm.

It is, thus, only in the situation when a trial court has been found arbitrarily to have denied a motion for continuance to obtain new counsel, and that denial does not rise to the level of a constitutional violation,⁸ that ineffective assistance of counsel becomes relevant on a direct appeal, because the burden to show harm would remain on the appellant. While competence of trial counsel would evidence a lack of harm, a showing of ineffective assistance of trial counsel would not necessarily prove harm by virtue of the denial of the continuance, since it is impossible to know the quality of representation that substitute counsel would have afforded the defendant. Ineffective assistance of counsel is, therefore, only a potential factor, and not a requisite, to a showing of harm in such a situation. Viewed from this perspective, there is no conflict with Leecan. Since an appellant is bound by the record to make a showing of harm, if the record fails, the appeal will fail. All specific claims of ineffective assistance of counsel must still be raised in a habeas forum. State v. Leecan, supra.

In its review of the trial court’s denial of the continuance, the Appellate Court’s decision mirrored the confusion in some of our cases by blurring the distinction between a showing of an abuse of discretion and a showing of reversible harmful error.⁹ State v. Hamilton, supra, 82-85. We now hold that the correct standard does not require a defendant to raise a claim of ineffective assistance of counsel on the issue of the trial court’s alleged abuse of its discretion. The defendant’s burden on appeal is to show that the trial court acted arbitrarily, in light of the information available at the time of its decision, and thereafter, if an abuse of discretion has been established, that the defendant’s ability to defend himself has thereby been demonstrably prejudiced. To pursue this claim, it was not necessary for him to challenge the effectiveness of his assigned counsel.

II

The Appellate Court’s articulation of a mistaken standard of review does not, however, obviate a consideration of the merits of the defendant’s claim that he was improperly denied a continuance. Although we could remand this issue to the Appellate Court, we have decided to address the merits ourselves. Because we have before us the same record upon which the Appellate Court would have to act, and because the issue has been fully briefed, we agree with the parties that a final resolution of the defendant’s appeal will best serve the interests of judicial economy.

The defendant claims that, in the exceptional circumstances of his case, the trial court’s denial of his motion for a continuance to obtain new counsel constituted an abuse of discretion and violated his constitutional rights to counsel under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.¹⁰ We disagree.

The defendant moved for a continuance to obtain private counsel on the second day of trial, after the jury had been impaneled, but before evidence had been presented.* ¹¹ The trial court’s interest in the efficient administration of justice weighed heavily at that time. State v. Beaulieu, 164 Conn. 620, 627-28, 325 A.2d 263 (1973).

In its ruling denying the defendant’s motion for a continuance, the trial court made no finding that the defendant’s motion was either frivolous or motivated by an intent to delay his trial. In the absence of such a finding, 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.¹² It is significant, however, that the defendant asked for a continuance of unspecified duration, and, as the trial court found, made no showing of his then present ability to retain new counsel.¹³

The trial court did not act precipitously in response to the defendant’s motion. It took several recesses in order to enable the private counsel whom the defendant sought to retain, or his representative, to appear so that the court might ascertain counsel’s willingness and ability to represent the defendant.¹⁴

Having given the defendant the opportunity to buttress his claim that retained counsel was available to undertake his defense, the court did not abuse its discretion in thereafter denying the defendant’s request for a continuance of indefinite duration for a further exploration into the possibility of obtaining retained counsel. Neither at that time nor at any subsequent time during the trial did the defendant ever represent to the court that retained counsel was ready and willing to replace his assigned counsel. The trial court was informed that the defendant had actually met with private counsel nine months earlier, at the time of his arrest, but had chosen not to retain him at that time. The trial court could reasonably have taken note of the fact that, in the months between the defendant’s arrest and his trial, the defendant had continuously been represented by his special public defender, Attorney David Abbamonte. The defendant’s only articulated objection to his assigned counsel was indirect: he did not want any public defender because he felt he was being railroaded by the state. The gravamen of the defendant’s complaint was that the same assigned counsel had recently represented him in an unrelated case that had resulted in a sentence of twenty-five years of incarceration. The defendant did not claim, however, that in this case 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. On this record, we cannot conclude that the trial court acted arbitrarily or unreasonably in denying the defendant’s motion for a continuance.¹⁵

Further, the denial of a continuance neither impaired the defendant’s right to due process nor did it deprive him of his constitutional right to counsel of his choice. Under a due process standard, it is “only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ [that] violates the right to assistance of counsel [of choice]. Ungar v. Sarafite, 376 U.S. 575, 589, [84 S. Ct. 841, 11 L. Ed. 2d 921] (1964).” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983); Linton v. Perini, supra, 210. Under the more stringent standard of the sixth amendment, the right to counsel of choice is violated only if a defendant is arbitrarily deprived of a fair opportunity and reasonable time to employ counsel of the defendant’s own choosing. Crooker v. California, 357 U.S. 433, 439, 78 S. Ct. 1287, 2 L. Ed. 2d 1448 (1958), overruled on other grounds, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Chandler v. Fretag, 348 U.S. 3, 9-10, 75 S. Ct. 1, 99 L. Ed. 4 (1954); Linton v. Perini, supra, ; Releford v. United States, 288 F.2d 298, 301 (9th Cir. 1961); State v. Beaulieu, supra, 628. Here, the defendant had more than nine months between the time of his arrest and trial in order to retain private counsel. In the absence of a showing that the defendant had the financial ability to retain private counsel,¹⁶ was unable to pursue private representation because of some event or circumstance outside of his control,¹⁷ or had identified private counsel who was willing to represent him, we cannot conclude that there was a violation of the defendant’s constitutional rights.

It bears emphasis that our review of this matter is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances. State v. Aillon, supra, 394. Therefore, the question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently. Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives. See State v. Nixon, 32 Conn. App. 224, 630 A.2d 74 (1993); Fisher v. Fisher, 28 Conn. App. 483, 487, 611 A.2d 440 (1992).

The judgment of the Appellate Court is affirmed.

In this opinion Katz and Palmer, Js., concurred.

1 The defendant “received twenty year concurrent sentences for the robbery and burglary convictions, a ten year consecutive sentence for the attempted assault conviction, and a five year consecutive sentence for carrying a pistol without a permit.” State v. Hamilton, 30 Conn. App. 68, 69, 618 A.2d 1372 (1993).

2 In the Appellate Court, the defendant specifically claimed that: “(1) the evidence was insufficient to sustain his conviction for the offense of carrying a pistol without a permit, (2) the trial court improperly instructed the jury on the offense of carrying a pistol without a permit by failing to define an essential element of the crime, (3) the evidence was insufficient to sustain a conviction for the offense of attempted assault in the first degree, and (4) the trial court improperly denied his request for a continuance.” State v. Hamilton, 30 Conn. App. 68, 69-70, 618 A.2d 1372 (1993). With regard to the first three issues, the Appellate Court determined that: (1) there was legally sufficient evidence presented at trial for the jury to find the defendant guilty of carrying a pistol without a permit; but (2) there was instructional error that warranted reversal of the conviction on that same count; and (3) there was sufficient evidence to sustain the conviction for attempted assault in the first degree. These issues are not before this court.

3 The precise wording of the issue certified for appeal was: “Did the Appellate Court improperly commingle direct appeal and collateral review standards and thereby arrive at the erroneous and harmful legal conclusion that in order to prevail on a direct appeal claim that the trial court erred in denying the defendant’s motion for a continuance to obtain new counsel, the defendant must demonstrate ‘specific prejudice’ or claim ‘ineffective assistance of counsel’?” State v. Hamilton, 225 Conn. 910, 621 A.2d 290 (1993).

4 We recognize that this analysis has, in the past, been effectuated under the rubric of “abuse of discretion”; see, e.g., State v. Aillon, 202 Conn. 385, 395, 521 A.2d 555 (1987); State v. Stanley, 197 Conn. 309, 311-12, 497 A.2d 46 (1985); and that this has led to inconsistency in the application of the standard. For purposes of clarification, therefore, we now term the assessment of actual prejudice to the defendant’s case as “harmless error analysis.”

5 See United States v. Burton, 584 F.2d 485, 498 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979); Sekou v. Warden, 216 Conn. 678, 689, 583 A.2d 1277 (1990); State v. Beckenbach, 198 Conn. 43, 51-52, 501 A.2d 752 (1985).

6 We note that in other situations, where “error touches a less basic constitutional right, we sometimes apply the ‘harmless error’ exception . . . [i.e.,] we require the state to prove the error harmless beyond a reasonable doubt.” (Citation omitted.) State v. Truppi, 182 Conn. 449, 465, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981) (applying harmless error exception where defendant challenged jury instructions on due process grounds).

7 We characterize State v. Beckenbach, 198 Conn. 43, 501 A.2d 752 (1985), as nonconstitutional in nature because there the defendant did not raise on appeal any claim that the trial court had violated his constitutional rights (the right to counsel, counsel of choice, or effective assistance of counsel). Id., 45, 49 n.5. Rather, that defendant asserted only that the trial court had abused its discretion in denying his motions for a continuance. Id. We have stated that “ ‘[t]he only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court.’ ” Id., 47.

8 The determination of whether an arbitrary action by a trial court violates a constitutional right is made by reference to the constitutional standard governing the respective right. The standards established for the protection of the constitutional right to counsel of choice as elaborated under the sixth and fourteenth amendments to the United States constitution are set forth, infra, at pp. 249-50.

9 See footnote 4.

10 Because the defendant has not sufficiently analyzed the state constitution independent of its federal counterpart, we decline to consider this state constitutional claim. State v. Campbell, 224 Conn. 168, 181 n.12, 617 A.2d 889, cert. denied, U.S. , 113 S. Ct. 2365, 124 L. Ed. 2d 271 (1992); State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991). The defendant’s analysis of the state constitutional claim, in its entirety, was as follows: “That [the right to counsel of choice] is also independently secured under the Connecticut Constitution is equally clear. Conn. Const., art. I, § 8, as amended by art. XVII. ‘This state has had a long history of recognizing the significance of the right to counsel, even before that right attained federal constitutional importance.’ State v. Stoddard, 206 Conn. 157, 164 [537 A.2d 446] (1988); State v. Davis, 199 Conn. 88, 99-100 [506 A.2d 86] (1986) (as early as 1818 ‘the advice and services of counsel were regarded as crucial to a criminal defendant’ in this state).” The dissent, nevertheless, reaches and decides the state constitutional issue. In so doing the dissent announces a new standard for our state constitution not adopted by this court. The parties to this appeal, in briefing the state constitutional issue, did not adhere to the guidelines for state constitutional analysis set forth in State v. Miller, 227 Conn. 363, 380-81, 630 A.2d 1315 (1993), State v. Lamme, 216 Conn. 172,177-85, 579 A.2d 484 (1990), and State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), on which the dissent relies. Furthermore, the dissent finds a violation of the state constitution without itself engaging in the multifactor analysis of these cases.

11 The defendant made contemporaneous motions for a continuance for appointment of a different guardian ad litem in conjunction with a request that the defendant undergo a competency exam. The bases for these separate motions do not inform our inquiry regarding the motion for continuance to obtain new counsel.

12 An absence of evidence that the defendant intended to delay the proceedings does not, in itself, warrant a finding that the trial court abused its discretion. State v. Beckenbach, 198 Conn. 43, 50, 501 A.2d 752 (1985).

13 When questioned by the trial court if his cousin, Jimmy Cooper, could afford to retain private counsel, the defendant responded, “that’s for me and him to know.” Also, the court was aware that the defendant’s counsel of record was a special public defender, appointed on the defendant’s prior showing of indigency.

14 There was evidence presented by Attorney Peter McGuinness, an associate from the office of Attorney Robert Gulash, the private attorney whom the defendant hoped to retain, that he did not believe that Gulash, in the event he did agree to represent the defendant, would be free in the next five to ten days to handle this trial.

15 It is unfortunate that the concurring opinion raises the spectre of race as distorting the just resolution of this case. We all must be sensitive to racial fairness in the administration of justice. The parties themselves, however, have never articulated race as a factor affecting the exercise of the trial court’s discretion, nor does the record reveal that the defendant’s race had any positive or negative influence on the trial court’s ruling.

16 United States v. Inman, 483 F.2d 738, 739-40 (4th Cir. 1973), cert. denied, 416 U.S. 988, 94 S. Ct. 2394, 40 L. Ed. 2d 766 (1974) (an accused who is financially able to retain counsel must not be deprived of an opportunity to do so).

17 See Sekou v. Warden, 216 Conn. 678, 687, 583 A.2d 1277 (1990); see also United States v. Burton, 584 F.2d 485, 500 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979) (Robinson, J., dissenting) (opportunity to obtain counsel not afforded because of circumstances beyond the defendant’s control).