author: HETMAN, J.

text:
    STATE OF CONNECTICUT v. ERIC AMADO
    (15176)
    Lavery, Heiman and Hennessy, Js.
    Argued February 16
    officially released July 30, 1996

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan C. Benedict, assistant state’s attorney, for the appellee (state).
   HETMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of murder in violation of General Statutes § 53a-54a, two counts of felony murder in violation of General Statutes § 53a-54c, and capital felony in violation of General Statutes § 53a-54b. The trial court sentenced the defendant on the capital felony conviction only and imposed a sentence of life imprisonment without the possibility of release pursuant to General Statutes 53a-35a. The defendant claims that the judgment should be reversed because of deficiencies in the trial court’s charge on the law of self-defense. Specifically, the defendant asserts that the trial court improperly instructed the jury (1) on the victims’ right to defend their premises where that right was not at issue, (2) on the use of reasonable force, (3) on the concept of initial aggressor, (4) on the duty to retreat and (5) that self-defense is not a defense to a charge of felony murder.

Although the defendant raises a number of issues relating to the trial court’s charge on self-defense, the dispositive issue in this appeal is whether self-defense, codified in General Statutes § 53a-19, is available as a defense to a charge of felony murder. If self-defense is not available as a defense to felony murder, then the defendant’s attack on the self-defense charge as it applies to his felony murder convictions would be unavailing, and, consequently, the felony murder convictions would support the capital felony conviction. If the capital felony conviction is supported by the felony murder convictions, we need not address the defendant’s attack on the self-defense charge as it applies to his intentional murder convictions because, regardless of any impropriety in the self-defense charge as it applies to the intentional murder convictions, the capital felony conviction would remain intact. Thus, the resolution of the defendant’s fifth claim is dispositive of this appeal.

The jury could reasonably have found the following facts. On October 18, 1990, and for some time prior thereto, Eric Amado was living in an apartment in West Haven with Joanne Bailey and Hope Vaughn. Amado also stored cocaine that he was selling in bulk in the apartment. He stored the narcotics in a small safe and in a duffel bag, both of which were kept in the laundry room of the apartment.

On October 18, 1990, Vaughn called Anthony Young at his residence at 505 Williams Street in Bridgeport. Young came to the West Haven apartment, and he and Vaughn removed the duffel bag and the safe from the apartment and placed them in the trunk of Young’s red Toyota Célica. Before leaving the apartment, Vaughn and Young opened the window and knocked some items to the floor to make it appear that someone had broken into the premises. They left West Haven and went to 505 Williams Street. When they arrived in Bridgeport, Young telephoned Peter Hall, who then went to 505 Williams Street.

Some time during that same day, Amado returned to the apartment and found that a window had been opened and that items in the apartment had been knocked over. Amado had gone to the apartment to pick up a quantity of cocaine that he was going to deliver to a purchaser. When Amado went to the laundry room where his drugs had been stored, he discovered that the drugs were missing. Bailey also returned to the apartment and discovered the open window and the items knocked to the floor. She left the premises and went to her sister’s house in Bridgeport.

Later in the day, Amado picked up Bailey at her sister’s house in Bridgeport. Amado was driving a white Mitsubishi. Amado was accompanied by Anthony Smalls. The group went to Norwalk to look for Vaughn to ascertain whether she knew who was responsible for the theft of the drugs. Amado, Bailey and Smalls met John Wideman, who joined in the search for Vaughn.

The group went to Stamford. They arrived at a house, and Bailey and Wideman waited in the car while Amado and Smalls entered the house. After about thirty minutes, Smalls emerged from the house. Fifteen minutes later, Amado came out of the house. Amado told the others that he had been visiting with a “voodoo man” who had told him that Vaughn and two others had stolen his drugs.

The group returned to Bridgeport and left Bailey at her sister’s house. Amado told her to stay there until he returned. Amado, Smalls and Wideman left the house and returned about ten minutes later accompanied by David Bailey, who was driving a blue Volvo.

The group of five decided to look for Vaughn. Amado, Smalls and Joanne Bailey rode in the white Mitsubishi, while Wideman and David Bailey rode in the blue Volvo. They first went to Vaughn’s sister’s house and when they did not find Vaughn there, they proceeded to 505 Williams Street. The four men were armed with pistols. They arrived at 505 Williams Street at about 9 p.m. and observed Vaughn standing on the porch with Young and Hall. Amado told Joanne Bailey to go to the porch and tell Vaughn that he wanted to talk with her. Vaughn came down from the porch and entered the white Mitsubishi. Amado asked Vaughn if she knew where his drugs were. Vaughn denied any knowledge of the theft or whereabouts of the missing cocaine. While questioning Vaughn, Amado was upset and talked loudly. Amado, Smalls, Vaughn, Wideman, David Bailey and Joanne Bailey left Williams Street and arrived at the West Haven apartment at about 2:30 a.m. on October 19, 1990. The group remained there overnight.

At about 10 a.m., Amado and Joanne Bailey went into the hallway to talk with neighbors. Amado wanted to determine whether the neighbors had observed anyone removing items from his apartment. After speaking with a neighbor across the hall, Amado told Vaughn that he had learned that she had taken his cocaine. Amado told Vaughn that the neighbor had seen her in a red Toyota Célica. Vaughn said that the vehicle belonged to Young.

Amado, Smalls, Vaughn, Wideman, David Bailey and Joanne Bailey proceeded to 505 Williams Street. Amado, Smalls, Vaughn and Joanne Bailey rode in the white Mitsubishi and the others rode in the blue Volvo. They arrived at the house at about 11 a.m., and everyone exited the vehicles. Amado and Smalls were both armed with handguns.

Amado, Vaughn and Joanne Bailey went to the porch of the house and rang the doorbell. When nobody answered, they knocked on the door. Young opened the door and Hall was standing behind him. Hall had a gun in the waistband of his pants. Amado accused Young and Hall of having his cocaine, and both Young and Hall denied having the drugs.

Young asked if they could talk, and Amado began shooting. He fired five shots. Joanne Bailey was shot in the left thigh, Young was shot in the left groin area and Hall was shot on the left side of the abdomen. Joanne Bailey went into the house, fell down and crawled into the kitchen. Hall went into the kitchen and collapsed on the floor near the refrigerator. Young collapsed in the front hall near the doorway.

Amado, Smalls, Wideman and David Bailey fled. Vaughn called 911 from a neighbor’s house and EMTs responded to the call. When the EMTs arrived at the house, the front door was locked and they were unable to enter. Vaughn returned and was screaming, “He’s shot.” She kicked in the window, entered the house and opened the front door for the EMTs.

Upon entering the house, the EMTs observed Young lying on the floor of the front hallway. He was unconscious and had sustained a gunshot wound. He was clutching a fully loaded magazine for an automatic weapon. Hall, also suffering from a gunshot wound, was sitting on the floor in the bedroom. He was unconscious, but his eyes were open. He held a small automatic pistol. The hammer of the pistol was cocked back, and his finger was on the trigger. The EMTs also found Joanne Bailey.

The Bridgeport police arrived. Officer John Galpin spoke with Young, who had regained consciousness, and asked him to name the person who had shot him. Young responded that Amado had shot him. Young and Hall were transported to Bridgeport Hospital. Young died as a result of a gunshot wound to the groin area and Hall died as a result of a gunshot wound to the abdomen.

The police obtained a search warrant for 505 Williams Street, and a search of the basement resulted in the seizure of two large plastic bags containing rocky white powder. One of the plastic bags was inside a black duffel bag. In addition, the police found a strainer, a spoon and a safe. The contents of the plastic bags tested positive for crack cocaine. The total weight of the two bags was about three and one-half pounds and the drugs had a bulk value of about $38,000.

An arrest warrant was issued for Amado (hereinafter the defendant), and he was arrested in Georgia as a fugitive from justice. Bridgeport authorities were notified of the defendant’s arrest on March 21, 1992, and approximately ten months later he was returned to Bridgeport for trial.

The defendant testified at trial. He conceded that he had shot the victims, but asserted that he did so in self-defense. He admitted that he lived in the West Haven apartment with Joanne Bailey and that in October, 1990, he had been engaged in selling cocaine. He also conceded that the duffel bag containing the cocaine and the safe were his property. He claimed that on October 18, 1990, he discovered that these items were missing and that he and the others went to Bridgeport to find out about the disappearance of the items.

The defendant testified that upon arriving at 505 Williams Street, he walked up to the front door. He asserted that he did not display a weapon as he went to the door. He claimed that the first person that he observed in the doorway was Young. The defendant testified that he told Young that the house in West Haven had been “robbed” and that Young’s car had been observed there. The defendant claimed that he asked Young whether he knew anything about the incident. According to the defendant, Young indicated that “he hadn’t been up there” and that “he didn’t have anything to do with it.”

The defendant further testified that as this conversation was taking place, Hall appeared in the doorway and stood to the rear of Young. The defendant stated that both Young and Hall were standing inside the house, while the defendant was standing on the porch. The defendant said that Smalls, who was standing to his rear, yelled at the men in the doorway, “Do you have our shit or don’t you?” The defendant asserted that Young became upset and shouted back at Smalls. The defendant testified that, up to this point, neither Young nor Hall appeared to have a weapon.

According to the defendant, Young then took a step forward and the defendant took a step back. The defendant claimed that he then saw Hall reach for the waistband of his trousers and start to draw a gun. The defendant testified that he became frightened because he thought Hall was going to shoot him. The defendant claimed that he drew his gun and shot into the house several times because he saw Hall pull out a gun. The defendant asserted that following the shooting, he ran away. He testified that during the incident, he did not know that he had shot Young and Hall.

We now turn to the fifth claim advanced by the defendant, namely, that the trial court improperly instructed the jury that self-defense is not available as a defense to a charge of felony murder.8 As we have stated, if this claim is without merit, then, regardless of whether the self-defense instructions were improper as to the intentional murder convictions, the defendant’s felony murder convictions would properly support his capital felony conviction, and, consequently, the judgment must be affirmed. We recognize that this precise issue has not been directly addressed by our appellate courts. We are persuaded, however, that the trial court acted properly in instructing that self-defense is not available as a defense to a charge of felony murder.

We begin our analysis by recognizing that the defendant has a constitutionally guaranteed due process right to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Scarpiello, 40 Conn. App. 189, 204, 670 A.2d 856 (1996). The right to establish a defense, however, is not limitless. The defense sought to be established must be legally cognizable as a valid defense to the crime charged. See State v. Anthony, 24 Conn. App. 195, 208-209, 588 A.2d 214, cert. dismissed, 218 Conn. 911, 591 A.2d 813, cert. denied, 502 U.S. 913, 112 S. Ct. 312, 116 L. Ed. 2d 254 (1991). Thus, we must examine the nature of the crime charged in order to determine the applicability of a defense to that particular crime.

Our felony murder statute, § 53a-54c, “contains no mens rea requirement beyond that of an intention to commit the underlying felony upon which the felony murder charge is predicated.” State v. Valeriano, 191 Conn. 659, 662, 468 A.2d 936, (1993), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1983). “In order to obtain a conviction for felony murder the state must prove, beyond a reasonable doubt, all the elements of the statutorily designated underlying felony, and in addition, that a death was caused in the course of and in furtherance of that felony. . . . There is no requirement that the state prove an intent to cause death.” (Citation omitted; emphasis added.) State v. Castro, 196 Conn. 421, 428-29, 493 A.2d 223 (1985). “Indeed, [t]he felony murder statute does not require that the defendant commit the homicidal act. ... A defendant may be liable if a death is caused by any participant in the underlying felony.” (Citations omitted; internal quotation marks omitted.) State v. Kyles, 221 Conn. 643, 668, 607 A.2d 355 (1992).

Thus, the elements of felony murder differ markedly from those of intentional murder. Our Supreme Court has recognized this difference in determining that manslaughter is not a lesser included offense of felony murder. In State v. Castro, supra, 196 Conn. 428-429, the court held: “In both lesser degrees of manslaughter the state must prove that the defendant possessed a culpable state of mind. Manslaughter in the first degree requires a showing that the defendant had the ‘intent to cause serious physical injury.’ General Statutes § 53a-55. Manslaughter in the second degree requires proof that a killing was committed ‘recklessly.’ General Statutes § 53a-56. In contrast, the felony murder statute contains no such mens rea element. . . . Since both first and second degree manslaughter require the showing of a culpable state of mind, manslaughter is not a lesser included offense of felony murder.” (Citations omitted.)

The purpose of the felony murder statute is to “punish those whose conduct brought about an unintended death in the commission or attempted commission of a felony. . . . The felony murder rule includes accidental, unintended deaths. Indeed, [our Supreme Court has] noted that crimes against the person like robbery, rape and common-law arson and burglary are, in common experience, likely to involve danger to life in the event of resistance by the victim. . . . Robberies by armed robbers no doubt are even more likely to result in unintended deaths than are arsons. Often it is the victim of the robbery who is accidently killed. The armed robber committing or attempting a robbery whose loaded gun ... is discharged accidentally when the robber and [another person] are struggling for the gun, is guilty of felony murder when the [person] is thus killed. . . .” (Citations omitted; internal quotation marks omitted.) State v. Kyles, supra, 221 Conn. 667. Moreover, “[t]he legislative history of § 53a-54c indicates that the felony murder statute was enacted to provide prosecutors with a means of proving murder in cases where a homicide occurs during the commission of certain felonies but specific intent to kill cannot be proven. 17 H.R. Proc., Pt. 6, 1974 Sess., pp. 3218-19, 3221-22; Conn. Joint Standing Committee Hearings, Judiciary, 1974 Sess., pp. 236-37.” State v. Greco, 216 Conn. 282, 297, 579 A.2d 84 (1990).

Coruts often decline to allow a defendant to raise a claim of self-defense in a felony murder case. See 2 P. Robinson, Criminal Law Defenses (1984) § 132, p. 99 . Having examined the language and purpose of § 53a-54c, we conclude that the trial court was correct in instructing that self-defense is not available as a defense to a charge of felony murder. In support of our conclusion, we next examine the opinions of courts of other jurisdictions that we find to be persuasive.

“[I]t has been held that the right to claim self-defense may be forfeited by one who commits an armed robbery, even if excessive force is used by the intended victim or by any person intervening to prevent the crime or apprehend the robber. Wilson v. State, 473 P.2d 633, 636 (Alaska 1970). See People v. Dillard, 5 Ill. App. 3d 896 [284 N.E.2d 490] (1972) (robber has no right to kill his victim to save his own life).” Commonwealth v. Maguire, 375 Mass. 768, 773, 378 N.E.2d 445 (1978). The United States Court of Appeals for the Second Circuit has determined that in a prosecution for felony murder under federal law, “[o]ne who commits or attempts a robbery armed with deadly force, and kills the intended victim when the victim responds with force to the robbery attempt, may not avail himself of the defense of self-defense.” United States v. Thomas, 34 F.3d 44, 48 (2d Cir. 1994). The court reasoned that “ ‘[i]t has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill. The right of homicidal self-defense is . . . denied to slayers who incite the fatal attack. ... In sum, one who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation.’ ” Id., quoting United States v. Peterson, 483 F.2d 1222, 1231 (D.C. Cir.), cert. denied, 414 U.S. 1007, 94 S. Ct. 367, 38 L. Ed. 2d 244 (1973). “Under this principle,” the court held, “the defendants had no entitlement to any self-defense charge.” United States v. Thomas, supra, 48.

The California Court of Appeals, which has also recently discussed the inapplicability of self-defense to a charge of felony murder, held: “The purpose of the felony-murder rule is to deter even accidental killings in the commission of designated felonies by holding the felon strictly liable for murder. (People v. Washington (1965) 62 Cal. 2d 777, 781 [44 Cal. Rptr. 442, 402 P.2d 130].) When a burglar kills in the commission of a burglary, he cannot claim self-defense, for this would be fundamentally inconsistent with the very purpose of the felony-murder rule. (People v. Arauz, (1970) 5 Cal.App.3d 523, 533 [85 Cal. Rptr. 266]; People v. Dillon, [34 Cal. 3d 441, 484 n.29, 194 Cal. Rptr. 390, 668 P.2d 697]).” People v. Loustaunau, 181 Cal. App. 3d 163, 170, 226 Cal. Rptr. 216 (1986).

The Supreme Court of Alaska has similarly explained that “ [authority clearly . . . indicates that a person who provokes a difficulty thereby forfeits his right to self-defense. This doctrine has been extended to preclude a person who commits a felony from claiming self-defense not only to the intended victim of the felony, but also as to any person intervening in an attempt either to prevent the crime or to apprehend the criminal.” Gray v. State, 463 P.2d 897, 908-909 (Alaska 1970). Thus, the Alaska court held: “Where . . . the defendant commits a felony which includes an immediate threat of violence, he has created a situation so fraught with peril as to preclude his claim of self-defense to any act of violence arising therefrom.” Id., 910. Moreover, the Alaska court summarized its reasoning by stating that, in the felony murder situation at issue, “ [t]o permit appellants to justify their slaying of [the victim] by claiming self-defense . . . would be to fashion a rule of law unresponsive to society’s need for protection against just such extraordinarily dangerous conduct. This would not, in our view, tend to facilitate decent and peaceful behaviour by all. To bestow such a privilege to slay would be manifestly unsound.” (Internal quotation marks omitted.) Id.

Finally, as the United States District Court for the District of Maryland has recognized, “[w]hen a defendant is charged under [the Maryland felony murder statute], the defense of self-defense is unavailable to him as a matter of law because he is an aggressor engaged in the perpetration of a felony. Street v. State, 26 Md. App. 336, 340, 338 A.2d 72 (1975). This . . . construction of the felony-murder statute comports with the general rule on the subject of the non-availability of self-defense as a defense to felony-murder. See Smith v. State, 209 Tenn. 499, 503, 354 S.W.2d 450, 452 (1961); People v. Perry, 14 Cal. 2d 387, 94 P.2d 559 (1939); 1 Wharton’s Criminal Law and Procedure § 252 (1957).” Street v. Warden, 423 F. Sup. 611, 613-14, (D. Md. 1976), aff'd, 549 F.2d 799 (4th Cir. 1976), cert. denied, 431 U.S. 906, 97 S. Ct. 1700, 52 L. Ed. 2d 390 (1977).

We conclude that a bright line rule that self-defense is not available as a defense to a charge of felony murder in violation of § 53a-54c is warranted. It is incongruous with the purpose of the felony murder statute to allow a defendant who causes a death in the course of committing an enumerated felony to mount a defense afterward asserting that he was merely defending himself against an attempt to thwart his felonious purpose. A defendant’s invocation of self-defense under such circumstances gives new meaning to the word “chutzpah.” We decline to import such an untenable rule into Connecticut jurisprudence.

On the basis of the foregoing, we conclude that the trial court properly instructed the juiy that self-defense is not available as a defense to a charge of felony murder. Because the defendant’s two felony murder convictions, unsuccessfully attacked, properly support the defendant’s conviction of capital felony, we need not, and do not, discuss the defendant’s attack on the trial court’s jury charge as it relates to the defendant’s two intentional murder convictions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant originally appealed to the Supreme Court pursuant to General Statutes § 51-199 (b) (3). The Supreme Court transferred the appeal to this court pursuant to General Statutes § 51-199 (c).

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-54c provides in pertinent part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . .
      The defendant was charged under the attempted robbery provision of § 58a-54c.

       General Statutes § 53a-54b provides in pertinent part: “A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction.”

       General Statutes § 53a-35a provides in pertinent part: “For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed . . . .”

       General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       See footnote 4.

       As we have indicated, it is only for the capital felony conviction that the defendant has been sentenced.

       The trial court, in three instances, instructed the jury that self-defense is not available as a defense to a charge of felony murder:
      (1) “[S]elf-defense applies to [the] offense of murder here. Now, I’m going to go into a murder felony. Self-defense does not apply to that,.’’ (Emphasis added.) (2) “Now, if you believe the defendant was certainly acting in the course of self-defense and the state has not. . . met its burden of disproving the effectiveness of that defense then you’d find him not guilty of murder. Not guilty in both instances. But then you still consider the offenses of felony murder.” (Emphasis added.) (3) “First, let me make it clear to you that in regard to the offenses of murder and any lesser included offense of manslaughter in subsection one or three, intentional or reckless manslaughter, those three in relation to both deaths in relation to this defendant, the defense of self-defense applies to murder and any lesser included offense of manslaughter. It does apply to that. It does not apply to felony murder. If you make all your decisions about murder and manslaughter, should you reach that subject, you move on to the subject of, or having left it earlier, whichever way you like to do it, on the felony murder self-defense does not apply to whether or not the accused is guilty of felony murder.” (Emphasis added.)

       In both State v. Quintana, 209 Conn. 34, 44-51, 547 A.2d 534 (1988), and State v. Miller, 36 Conn. App. 506, 651 A.2d 1318, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995), the defendants attacked their felony murder convictions on the ground that the trial court improperly instructed the jury on the law of self-defense. In each case, the court held that the instructions concerning self-defense did not warrant a reversal. In neither case, unlike in the present case, does it appear that the trial court instructed the jury that self-defense is not available as a defense to a charge of felony murder. Thus, the precise issue that we must address here was neither raised nor discussed in Quintana or Miller, and, therefore, the opinions in those cases are not dispositive of this appeal.

       Our conclusion that self-defense is not available as a defense to a charge of felony murder applies equally to a situation where a “participant” under § 53a-54c causes the death of the victim.

       Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993) defines chutzpah as “supreme self-confidence,” “nerve, gall.” See also A. Kozinsld & E. Volokh, “Lawsuit, Shmawsuit,” 103 Yale L.J. 463, 463-64 (1993).


source: Caselaw Access Project

author: DUPONT, C. J.

license: Public Domain

text:
    AIU INSURANCE COMPANY v. DANIEL BROWN ET AL.
    (14590)
    Dupont, C. J., and Foti and Spear, Js.
    Argued March 22
    officially released July 30, 1996

      Jack G. Steigelfest, for the appellant (National Grange Mutual Insurance Company).

      Andrew W. Skolnick, with whom, on the brief, was John J. Sheedy, for the appellee (plaintiff).
   DUPONT, C. J.

This is an appeal from the trial court’s denial of the motion filed by National Grange Mutual Insurance Company (Grange) to intervene in a declaratory judgment action brought by the plaintiff, AIU Insurance Company (AIU). The question to be resolved in the declaratory judgment action is whether AIU has a duty to indemnify or defend the defendant Daniel Brown under the automobile liability insurance policy that AIU issued to his father, the defendant Richard Brown, with respect to the claim submitted by the defendant Lorraine Merola. Grange claims that it has a right to intervene under Practice Book §§99 and 390 and General Statutes §§ 52-29 and 52-102 or a permissive right to intervene, and that the trial court improperly denied its motion to intervene. AIU claims that the trial court acted properly. We agree with Grange and reverse the judgment of the trial court.

In its amended complaint, AIU makes the allegations that follow. AIU issued an automobile liability insurance policy to Richard Brown. The policy was in effect on February 7, 1993, when Daniel Brown, while operating an automobile owned by Arnold Hubelbank, was involved in a collision with an automobile owned and operated by Merola. The automobile that Daniel Brown was operating at the time of the collision was not a family car maintained by Richard Brown for use by members of his family, such as Daniel Brown, his son. As a result of the accident, Merola filed an action seeking compensation for injuries and damages that she claims to have sustained as a result of the accident. At the time of the accident, Daniel Brown was operating Hubelbank’s automobile without a reasonable belief that he was entitled to do so. AIU, in its capacity as Richard Brown’s insurer, seeks declaratory relief because it has a legal interest, by reason of danger of loss or uncertainty as to its legal or contractual obligations pursuant to its automobile liability insurance policy issued to Richard Brown. Lastly, the complaint states that AIU is specifically seeking relief in the form of a declaration that it is not legally or contractually obligated to indemnify or defend Daniel Brown pursuant to its policy issued to Richard Brown as a result of the injuries allegedly sustained by Merola.

Grange moved to intervene as a party defendant because of its claimed interest in the outcome of this declaratory judgment action. Grange was the uninsured motorist carrier of Merola at the time of the accident. Grange is also a party defendant in the personal injury action brought by Merola against (1) Grange, her own insurer, (2) the driver of the automobile, Daniel Brown, (3) the owner of the automobile, the driver’s grandfather, Hubelbank, and (4) the driver’s father, Richard Brown. Grange is the only defendant in the suit brought by Merola who was not made a party defendant by the plaintiff in this declaratory judgment action.

AIU opposed Grange’s motion to intervene on the ground that Grange did not have a direct interest in the subject matter of the declaratory judgment action. The trial court heard oral argument on the motion to intervene and denied that motion in open court. After the court denied the motion to intervene and a motion for reconsideration of that denial, AIU and Richard Brown and Daniel Brown filed a stipulation in the trial court providing that AIU was not legally obligated to defend or indemnify Daniel Brown with respect to Merola’s claim.

In order to reach the merits of this case, we must first address the jurisdictional issues presented by this appeal. A possible absence of subject matter jurisdiction must be addressed and decided before reaching the merits. See Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993). “Absent a final judgment, we cannot reach the merits of the appeal.” State v. O’Connell, 36 Conn. App. 135, 136, 648 A.2d 168, cert. denied, 231 Conn. 943, 653 A.2d 824 (1994). Accordingly, we first determine whether the trial court’s denial of Grange’s motion to intervene is a final judgment from which an appeal may be taken.

The plaintiff asserts that Grange has failed to make a colorable claim to intervention as a matter of right and, therefore, the denial of its motion to intervene is not a final judgment for purposes of appeal. Grange claims that it has a colorable claim to intervention as a matter of right based on the provisions of General Statutes § 52-29 and Practice Book § 390. We agree and conclude that Grange’s claim to intervention is not only colorable, but also meritorious.* ****

“The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make ‘a colorable claim to intervention as a matter of right.’ Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n.l, 435 A.2d 352 (1980); Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291, 497 A.2d 780 (1985).” Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990). “If [an unsuccessful applicant for intervention] does make such a colorable claim, on appeal the court has jurisdiction to adjudicate both his claim to intervention as a matter of right and to permissive intervention. This reading is consistent with the by now classic definition of the appealability of an otherwise interlocutory order: ‘(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.’ State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).” Common Condominium Assns., Inc. v. Common Associates, supra, 291.

General Statutes § 52-29 authorizes the Superior Court to adjudicate declaratory judgment actions and delegates to the judiciary the task of making rules to govern such actions. One of the prerequisites to a declaratory judgment is that “all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” Practice Book § 390 (d). “ ‘Under [Practice Book § 390 (d),] all such persons even though their presence is not necessary to a decision of the issues between the parties of record are required either to be made parties or to have reasonable notice of the action. Where they are reasonably within the reach of the process and are not so numerous that it would impose an unreasonable burden upon the plaintiff they should be made parties-, but if they or some of them are not reasonably available for service or to summon them or all of them into the action would put upon the plaintiff a burden he ought not fairly to be asked to assume, the provision for reasonable notice applies.’. ..” (Emphasis added.) Benz v. Walker, 154 Conn. 74, 78, 221 A.2d 841 (1966).

“Statutes and rules relating to the remedy of declaratory judgments are given a liberal construction to effectuate their purposes. Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 409, 51 A.2d 907 (1947). ‘One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits. Fully to carry out the purposes intended to be served by such judgments, it is sometimes necessary to determine rights which will arise or become complete only in the contingency of some future happening. Even if the right claimed ... is a contingent one, its present determination may well serve a very real practical need of the parties for guidance in their future conduct. A construction of our statute and rules which would exclude from the field of their operation the determination of rights, powers, privileges and immunities which are contingent upon the happening or not happening of some future event would hamper their useful operation.’ (Emphasis added.) Sigal v. Wise, 114 Conn. 297, 301-302, 158 A. 891 (1932).” Bombero v. Planning & Zoning Commission, 40 Conn. App. 75, 79, 669 A.2d 598 (1996).

During oral argument on the motion to intervene, the trial court explicitly recognized that Grange had an interest in the outcome of this action because either AIU or Grange would eventually be responsible for paying Merola, in whole or in part. The trial court therefore recognized that the interests of AIU and Grange were antagonistic. AIU’s coverage is a maximum of $300,000, which if paid would probably mean that Grange would not need to pay anything. The court stated: “And really the same issues are involved in both [the present case and the personal injury action brought by Merola against all the defendants and Grange]. And that is, is this an uninsured vehicle? If AIU has coverage, it’s not. If AIU doesn’t have coverage, it is.”

The trial court, after succinctly stating the issue, nevertheless, concluded that Grange was not a “necessary party” or a party that “that needs to be an actual party in this case.” Because this is a declaratory judgment action, the determinative issue, however, is not whether Grange is a necessary party to this action, but simply whether the outcome of this action may affect Grange’s interests because it is the defendant Merola’s carrier for uninsured motorist coverage. Grange will be directly affected by the trial court’s determination of the plaintiffs coverage liability relating to the claim submitted by the defendant Merola. If AIU is not obligated to defend or indemnify Daniel Brown as a result of insuring Richard Brown, Grange may be liable to Merola because of its insurance policy sold to Merola. The stipulation of AIU and the Browns filed in this case in the trial court directly affects Grange because it attempts to settle the action in AIU’s favor to the detriment of Grange. If Grange is not a party to the declaratory judgment action, it will have no opportunity to object to the acceptance of the stipulation.

This is a declaratory judgment action. There is a danger of loss of rights or an uncertainty as to the liability of Grange with respect to the claim submitted by Merola and, therefore, Grange should be allowed to intervene. See Bombero v. Planning & Zoning Commission, supra, 40 Conn. App. 75. We conclude that Grange has demonstrated an interest in the subject matter of the complaint sufficient to warrant intervention.

The judgment is reversed and the case is remanded with direction to grant the motion to intervene and for further proceedings.

In this opinion the other judges concurred.

       The defendants in the declaratory judgment action are Richard Brown, Daniel Brown, Arnold Hubelbank and Lorraine Merola. Daniel Brown is the son of Richard Brown and the grandson of Arnold Hubelbank.

       Subsequent to filing its appeal, Grange filed a “motion for order dismissing action” seeking this court to render “an order remanding this action to the trial court with direction to dismiss the action based on the existence of a more comprehensive case currently pending in the Superior Court that renders this action wholly duplicative and unnecessary.” We denied that motion.

       A transcript of the hearing on the motion to intervene, including the court’s reasons for denying the motion to intervene, was filed in this court.

       General Statutes § 52-29 provides: “(a) The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.
      “(b) The judges of the superior court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”

       Practice Book § 390 provides: “[Conditions] The court will not render declaratory judgments upon the complaint of any person: “(a) unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or
      “(b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; or
      “(c) where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure; or
      “(d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”

       Because we conclude that Grange’s claim to intervention as a matter of right pursuant to the provisions of General Statutes § 52-29 and Practice Book § 390 is meritorious, we need not consider Grange’s remaining claims of whether the trial court improperly denied its motion to intervene as a matter of right under Practice Book § 99 or General Statutes § 52-102, or whether the trial court abused its discretion in not allowing permissive intervention. We note that in Horton v. Meskill, 187 Conn. 187, 445 A.2d 579 (1982), our Supreme Court considered motions to intervene based on Practice Book § 99 and General Statutes § 52-102 and on permissive intervention, rather than interventions specifically based on Practice Book § 390 and General Statutes § 52-29. Although the action in Horton began as a declaratory judgment action, the applicants moved for intervention after the trial court rendered its declaratory judgment. Id., 189. The Horton, court also considered the timeliness of the motions to intervene as well as the similarity of interests of the proposed intervenors to others already parties. For these reasons, Horton is distinguishable.

       The trial court was aware at the hearing on the motion to intervene that a stipulation might be filed, and in response to counsel for AIU’s statement that the stipulation would not be binding on Grange, said, “I wouldn’t think so. And it would be unfair.” Although the stipulation cannot bind Grange, Grange argued that it could not be used to claim AIU had no responsibility under its policy because AIU had already paid property damage claims under the policy.

       Grange asserts that it also has an interest in the outcome of this action by virtue of a trust agreement provision in the automobile liability policy it issued to the defendant Lorraine Merola. In light of our threshold conclusion that Grange’s legal interest as Merola’s uninsured motorist carrier may be implicated by the outcome of this action, and that that interest in and of itself is sufficient to warrant intervention here, we need not determine whether the claimed interest relating to the trust agreement provision is sufficient to warrant intervention.


author: SPEAE, J.

text:
    STATE OF CONNECTICUT v. CARMEN CASADO
    (15039)
    Foti, Landau and Spear, Js.
    Argued May 1
    officially released July 30, 1996

      Glenn W. Falk, special public defender, with whom, on the brief, was Donald D. Dakers, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Joseph J. Harry, assistant state’s attorney, for the appellee (state).
   SPEAE, J.

The defendant appeals from the judgment of conviction rendered by the trial court after accepting the defendant’s plea of nolo contendere to the charges of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, she claims that the trial court improperly (1) accepted the defendant’s plea without first ascertaining whether the defendant understood the elements of the charged offenses, (2) failed to appoint new counsel and to conduct an evidentiary hearing on the defendant’s motion to withdraw her plea, and (3) sentenced the defendant without either appointing new counsel or making a thorough inquiry pursuant to Practice Book § 961.

The record and transcripts reveal the following relevant facts and procedural history. The defendant was charged with one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), and two counts of risk of injury to a child in violation of General Statutes § 53-21. On January 18, 1995, the defendant, just prior to the commencement of juiy selection, withdrew all prior pleas and entered a plea of nolo contendere to the charge of assault in the first degree and one count of risk of injury to a child.

The state offered the following factual basis for the plea. On March 1,1994, the defendant and a codefendant took physical custody of the four year old victim who was in good health. During the following thirty days, the victim was assaulted with either a belt or a stick causing injuries to her left eye, back, stomach, chest and leg. The victim also suffered internal injuries caused by blunt trauma to the stomach, which injured her pancreas. The victim’s left eye was completely swollen, and her fingers were burned by cigarettes. The victim’s grandmother and the emergency room doctor would have testified to the defendant’s participation in the physical assault of the victim.

The trial court accepted the defendant’s plea after conducting a plea canvass pursuant to Practice Book §§711 through 713 and determining that the plea was entered knowingly, voluntarily, and intelligently.

At her March 30,1995 sentencing hearing, the defendant moved to withdraw her plea of nolo contendere claiming that she had been pressured by her attorney to enter the plea. Her attorney told the court that the defendant no longer wanted him to represent her and suggested that another attorney be appointed, and that an evidentiary hearing be conducted on her motion to withdraw the plea. The trial court denied the request for a hearing and ruled: “Your motion to allow the defendant to withdraw the plea, which I guess includes a motion to allow you to withdraw as counsel are both denied.” After conferring with the defendant, defense counsel again told the court that the defendant did not want him to make any comments at that hearing. After the defendant addressed the trial court personally at the hearing, the court imposed a total effective sentence of twenty-five years. This appeal followed.

Additional facts will be provided where relevant to specific claims.

I

The defendant first claims that the trial court improperly accepted her plea without first ascertaining whether she understood the elements of the four charged offenses.

Our review of the record reveals that this issue was not raised before the trial court. The defendant did not raise the issue at the time that she entered her plea, and, although she subsequently moved to withdraw her plea, that motion was not based on a claim that she did not understand the elements of the charged offenses. “Ordinarily, we will not review a claim that was not distinctly raised before the trial court.” State v. Rogers, 38 Conn. App. 777, 787, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). Moreover, the defendant has not requested that we review this claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” State v. Rogers, supra, 787; see State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995); State v. Johnson, 26 Conn. App. 433, 438, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992). We decline, therefore, to review the claim.

II

The defendant next asserts that the trial court was required to appoint new counsel and to conduct an evidentiary hearing after the defendant moved to withdraw her plea on the ground that her attorney had pressured her into entering the plea. We disagree.

At the sentencing hearing, defense counsel indicated that the defendant did not want him to make any further comments on her behalf. The trial court proceeded to sentence the defendant without conducting an evidentiary hearing on the motion to withdraw the plea.

Practice Book § 720 provides that “[a] defendant may withdraw [her] plea of . . . nolo contendere as a matter of right until the plea has been accepted.” That section further provides that after acceptance of the plea but prior to the imposition of sentence, the court “shall allow the defendant to withdraw [her] plea upon proof of one of the grounds in Sec. 721.” A plea entered into involuntarily entitles a defendant to withdraw such plea pursuant to § 721 (1).

The mere assertion by the defendant that the plea was involuntary, however, does not entitle her to withdraw the plea, nor does it require the trial court to conduct an evidentiary hearing on the motion to withdraw. In fact, “[t]he court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique.” State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980). Rather, “[f]or the purpose of determining whether to hold an evidentiary hearing [on a motion to withdraw], the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under § 721 and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, then an evidentiary hearing is required.” Id., 185-86; see also State v. Watson, 198 Conn. 598, 612-13, 504 A.2d 497 (1986). Nevertheless, “[a]n evidentiary hearing is not required if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit.” (Emphasis added.) State v. Torres, supra, 185; see also Fontaine v. United States, 411 U.S. 213, 215, 93 S. Ct. 1461, 36 L. Ed. 2d 169 (1973).

The defendant moved to withdraw her plea of nolo contendere on the ground that her attorney had pressured her into entering the plea, a ground for withdrawal recognized in § 721. The defendant further asserts that her allegation that the plea was not voluntary was not conclusively refuted by the record, and, therefore, the trial court was required to conduct an evidentiary hearing. Having thoroughly examined the record of the plea proceeding, we conclude that the canvass conclusively establishes that the defendant’s motion to withdraw her plea is without merit.

At the plea proceeding, the trial court instructed the defendant: “Now, I’m going back to my original question because under no circumstances will I accept a plea if you believe you're being forced into this. You have the option of going to trial and defending the charges or going forward and entering the plea that you are— you’ve signed, which is a no contest plea, nolo contendere. Now, if you wish to go forward with the trial, we’ll do that. I will suspend my questioning of you, and we can start with jury selection. If you want to plead nolo contendere, which means you don’t want to fight the charges, then I have to know that now.” (Emphasis added.) After the trial court warned the defendant two additional times that it would not accept an involuntary plea, and after the defendant indicated that she was not forced to enter the plea, the trial court accepted the plea of nolo contendere.

A trial court “may properly rely on . . . the responses of the [defendant] at the time [she] responded to the trial court’s plea canvass . . . .” Bowers v. Warden, 19 Conn. App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989); see also State v. Williams, 203 Conn. 159, 170, 523 A.2d 1284 (1987). After the trial court informed the defendant numerous times that it would not accept a plea that was not entered into “voluntarily and willingly . . . without any force or coercion,” the defendant represented that she was not forced into entering her plea. The trial court properly relied on these representations in accepting the plea. We conclude that the plea proceeding refutes her claim that she was forced into entering her plea, and, therefore, the trial court was not required to conduct an evidentiary hearing.

Nor was the trial court required to appoint new counsel for the defendant before considering her motion to withdraw the plea. The constitutional right to counsel does not necessarily include the unbridled right to discharge counsel and have new counsel appointed. “While a criminal defendant’s right to be represented by counsel implies a degree of freedom to be represented by counsel of [the] defendant’s choice . . . this guarantee does not grant a defendant an unlimited opportunity to obtain alternate counsel . . . .” (Citations omitted; internal quotation marks omitted.) Sekou v. Warden, 216 Conn. 678, 686, 583 A.2d 1277 (1990), quoting State v. Gonzalez, 205 Conn. 673, 683, 535 A.2d 345 (1987); State v. Lee, 32 Conn. App. 84, 101, 628 A.2d 1318 (1993), cert. denied, 227 Conn. 924, 632 A.2d 702, cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1993). Moreover, where a defendant seeks “ ‘a last minute discharge of counsel there must exist exceptional circumstances.’ ” State v. Drakeford, 202 Conn. 75, 83-84, 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). “A court need not permit the replacement of counsel upon a defendant’s mere whimsical demand and certainly not where it is evident that a professed disenchantment with his lawyer is a subterfuge to secure an unwarranted delay . . . .” (Internal quotation marks omitted.) Sekou v. Warden, supra, 686-87; see also State v. Beaulieu, 164 Conn. 620, 629, 325 A.2d 263 (1973).

The trial court is bestowed with broad discretion in determining whether the circumstances warrant the appointment of new counsel. Sekou v. Warden, supra, 216 Conn. 686; State v. Drakeford, supra, 202 Conn. 83; State v. Lee, supra, 32 Conn. App. 101. “[A]bsent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error.” State v. Drakeford, supra, 83.

The record in this case reveals that the court acted within its discretion in not appointing new counsel prior to considering the defendant’s motion to withdraw the plea. The defendant’s reason for requesting the replacement of counsel was to enable her new counsel to examine her present counsel regarding the alleged pressure that he exerted on her. The trial court’s refusal to hold an evidentiary hearing mooted the defendant’s stated reason for needing new counsel. We conclude, therefore, that the trial court acted properly in not permitting the replacement of counsel prior to considering the motion.

Ill

In her last claim, the defendant asserts that the trial court improperly sentenced her without either appointing new counsel or making a thorough inquiry pursuant to Practice Book § 961. Specifically, she argues that the trial court, having not appointed new counsel, should have made a determination as to the voluntariness of the plea and issued an instruction as to the dangers and disadvantages of proceeding without the assistance of counsel.

At the sentencing hearing, defense counsel indicated that the defendant “emphatically does not want me to go forward to represent her at this sentencing hearing” and “does not want me to speak on her behalf.” On the basis of the defendant’s wishes, he moved to withdraw. The trial court, in denying his request to withdraw as counsel, ruled that “[t]his matter will proceed today to sentencing.” The court then instructed defense counsel: “I give you a moment right now to see if your client wishes to allow you to address the court at the sentencing hearing, or wishes to address the court herself, or chooses that neither you nor she address the court at this sentencing hearing which will go forward today.” After a brief discussion with the defendant, defense counsel informed the court that “[the defendant] does not want me making any comments at this hearing; however, she does have some comments that she would like to make to the court.” Before imposing sentence, the court instructed the defendant: “Now, you’ve been at liberty prior to that date [when the plea was entered], and since that date two months and twelve days of time have expired .... There’s no new counsel filing any appearances. If you were going to hire new counsel, you had ample opportunity to do so.”

The defendant first asserts that prior to sentencing, the trial court should have appointed new counsel. As fully discussed in part II of this opinion, the determination as to whether circumstances warrant the appointment of new counsel rests solely within the trial court’s discretion. State v. Crenshaw, 210 Conn. 304, 314, 554 A.2d 1074 (1989); State v. Lee, supra, 32 Conn. App. 101. At the sentencing hearing, the trial court noted that the defendant had over two months since the date of the plea proceeding to obtain new counsel. The defendant’s failure to do so during this period of time, and her decision to wait until the hearing to request a change evinces an intent to delay the proceedings. The trial court, therefore, properly exercised its discretion in denying the request for the appointment of new counsel.

The defendant next argues that the trial court, having denied the request for new counsel, should have inquired as to the voluntariness of the defendant’s waiver of counsel and issued an instruction about the dangers and disadvantages of proceeding without the assistance of counsel. Ller argument, however, is premised on the belief that she had effectively waived counsel by instructing her attorney not to make any comments on her behalf. This belief is unwarranted.

“The constitutional right of self-representation depends . . . upon its invocation by the defendant in a clear and unequivocal manner. ... In the absence of a clear and unequivocal assertion of the right to self-representation, a trial court has no independent obligation to inquire into the defendant’s interest in representing himself, because the right of self-representation, unlike the right to counsel, is not a critical aspect of a fair trial, but instead affords protection to the defendant’s interest in personal autonomy. . . . When a defendant’s assertion of the right to self-representation is not clear and unequivocal, recognition of the right becomes a matter entrusted to the exercise of discretion by the trial court. ... In the exercise of that discretion, the trial court must weigh into the balance its obligation to indulge in every reasonable presumption against waiver of the right to counsel. ” (Citations omitted; internal quotation marks omitted.) State v. Carter, 200 Conn. 607, 611-14, 513 A.2d 47 (1986).

The record in this case fails to establish that the defendant clearly and unequivocally invoked her right to waive counsel and, thus, to represent herself. After a brief discussion with the defendant, defense counsel indicated that the defendant did not want him “making any comments at this hearing; however, she does have some comments that she would like to make to the court.” Such a statement does not constitute a clear waiver of her right to counsel. “A trial court, faced with the responsibility of reconciling a defendant’s inherently inconsistent rights to self-representation and to counsel, is entitled to await a definitive assertion of a request to proceed pro se. Any other ruling would permit a defendant on appeal to claim a violation of his rights whether he defended himself or was represented by an attorney.” Id., 614.

Because the defendant did not definitively assert a request to proceed pro se, we conclude that the defendant had representation at the time she was sentenced. As such, the court was not obligated to make an inquiry pursuant to Practice Book § 961.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 961 provides: “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself 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:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      “(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.”

       The colloquy at the plea proceeding continued:
      “[Defense Counsel]: You want to continue with the plea?
      “The Defendant: Yes.
      “[Defense Counsel]: Your Honor, she’s indicated that she does want to continue with the plea.
      “The Court: All right, But I just want to be very clear, Miss Casado, beca,use I want to be fair to you, that you’re doing this voluntarily and willingly, intelligently, freely, and without any force or coercion, and I’m going to ask you some more questions. But as soon as I get a feeling or impression, rather, from you that you’re being forced into this, I will not allow that, to happen to you or any defendant. I don’t care what the charge is. That's not the way our system works. You have a right to participate in the selection of that jury with your lawyer. And I’m not going to allow anyone to deprive you of that right. On the other hand, you also have the right to plead guilty or to enter a no contest plea, you have that right as well. Do you understand?
      “The Defendant: Yes, Your Honor.
      “The Court: Do you understand that by entering this plea of no contest, once I am satisfied after I ask you some more questions, which I still haven’t done, but I will do in a little while, but once I accept it and I atm, satisfied that you’re doing this voluntarily and freely and intelligently and without any force from anybody, that I will find you guilty of assault in the first degree and risk of injury, which are two felonies. Do you understand that?
      “The Defendant: Yes, Your Honor.
      * 4=
      “The Court: And, has anyone threatened you to plead guilty or to enter a no contest plea?
      “The Defendant: No.

        “The Court,: Is anyone forcing you to enter a no contest plea?

        “The Defendant: No.

      “The Court: Is anyone promising you anything in exchange for your no contest plea?
      “The Defendant: No.” (Emphasis added.)

       See footnote 1.