State v. Morico

539 A.2d 1033, 14 Conn. App. 140, 1988 Conn. App. LEXIS 103
Connecticut Appellate Court·Decided April 12, 1988·No. 5723·Published·Cited by 8 cases

Opinion

O’Connell, J.

This is an appeal by the defendant from a judgment of conviction of the crimes of assault in the first degree, in violation of General Statutes § 53a-59 (a) (1), and carrying a pistol or revolver without a permit, in violation of General Statutes § 29-35. The sole issue presented on appeal is whether the trial court erred in denying defense counsel’s motion to withdraw from the case. We find no error.

The following facts are not in dispute. On February 26,1986, the defendant was arrested in connection with the shooting of his former wife’s boyfriend. Two days after his arrest, the defendant was hospitalized [141] at the Connecticut Mental Health Center. On March 14, 1986, he was transferred to Whiting Forensic Institute (Whiting). Following an examination pursuant to General Statutes § 54-56d, the defendant was found competent to stand trial and was returned to the custody of the department of correction. A readmission to Whiting followed and, after a second competency evaluation, the defendant was again adjudged competent to stand trial. The defendant was once again transferred to the custody of the department of correction, pursuant to a conclusion by the director of forensic services at Whiting that the defendant “does not suffer from a treatable mental illness that would require continued hospitalization.” The defendant was represented by an assistant public defender from the time of his arrest until August 19,1986, when he obtained private counsel.

A notice of mental disease or defect was not filed by either the assistant public defender or by private counsel. See Practice Book § 758. In addition, private counsel indicated prior to the commencement of trial that he never intended to raise a mental disease or defect defense.1

After the jury had been selected, but before it had been sworn, the defendant conferred with his counsel, resulting in the counsel’s motion for permission to withdraw from the case because the defendant had become dissatisfied with his representation.2 The trial court [142] addressed the defendant directly and learned that the reason for his dissatisfaction was his lawyer’s refusal to raise a mental illness defense.3 The record indicates that the court made a sufficient inquiry into the reasons behind the defendant’s dissatisfaction to meet its obligations under State v. High, 12 Conn. App. 685, 689, 533 A.2d 1217 (1987).

The trial court advised the defendant that the evaluations of the defendant’s mental state contained in the court record did not indicate that such a defense was warranted, and that a notice of mental disease or defect would not be accepted at that time.4 Further, the trial court noted that the defendant had already changed [143] counsel once since his arrest, that a jury had been selected and that trial was about to commence. The motion to withdraw was denied, an exception was taken, the trial continued, and the defendant was ultimately found guilty of both crimes charged.

The considerations to be addressed in an examination of a motion for alternate counsel or a motion to withdraw were recently discussed by this court in State v. High, supra. “There can be no dispute that a criminal defendant has a constitutional right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985); that right, however, is not without limitation. For example, the right to counsel does not include the ‘ “unbridled right to discharge counsel on the eve of trial. . . . ” ’ (Emphasis in original.) State v. Drakeford, [202 Conn. 75, 83, 519 A.2d 1194 (1987)], quoting United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S. Ct. 118, 21 L. Ed. 2d 111 (1968). This limitation applies to both private counsel retained by an individual defendant as well as court appointed counsel. See State v. Gethers, 193 Conn. 526, 543, 480 A.2d 435 (1984), and cases cited therein. Furthermore, it is clear that the right to effective assistance of counsel does not include an ‘unlimited opportunity to obtain alternate counsel.’ State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986). Inherent in these limitations is a concern for unwarranted interruptions in the administration of justice. ‘While courts must be assiduous in their defense of an accused’s right to counsel, that right may not be “manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.” ’ United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), quoting United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied sub nom. [144] Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963); see also United States v. DiTommaso, 817 F.2d 201, 219 (2d Cir. 1987). With these competing interests in mind, we review the actions of the trial court in this case.” State v. High, supra, 690.

“The standard when reviewing a denial of a request for alternate counsel [and of a motion to withdraw] is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request.” Id.

Our Supreme Court further enunciated that requirement, stating that “[a] request for substitution of counsel requires support by a substantial reason, and may not be used to achieve delay.” (Emphasis added.) State v. Drakeford, supra, 83. The defendant in the present case contends that his dissatisfaction with his trial counsel’s failure to present a defense of mental disease or defect on his behalf, constitutes such a substantial reason. We disagree.

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State v. Morico, 539 A.2d 1033, 14 Conn. App. 140, 1988 Conn. App. LEXIS 103 (Colo. Ct. App. 1988).

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