text:
    State of Connecticut v. David Gethers
    (11569)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued June 13
    decision released September 3, 1985

      Beth A. Merkin and Holly J. Bray, certified legal interns, with whom were Michael R. Sheldon and, on the brief, Todd D. Fernow, for the appellant (defendant).

      Steven M. Sellers, deputy assistant state’s attorney, with whom, on the brief, were Michael Sullivan and Carl J. Schuman, assistant state’s attorneys, for the appellee (state).
   Arthur H. Healey, J.

This appeal involves various aspects of a criminal defendant’s right to self-representation at trial, including whether he has a right to hybrid representation. On August 22, 1980, the defendant was charged by an information with tampering with a witness in violation of General Statutes § 53a-151. After entering a plea of not guilty to the charge, he was tried by a jury and found guilty.

On appeal, he raises claims that the trial court erred in that it: (1) caused him to conduct a portion of his trial alone without first obtaining a valid waiver of his state and federal constitutional right to the assistance of counsel; (2) violated his state constitutional right to hybrid representation when his request to proceed as co-counsel was denied; (3) expressly restricted the role of his standby counsel in violation of Practice Book § 964; and (4) violated Practice Book § 632 in originally granting his defense counsel’s motion to withdraw. We find no error.

Some elaboration of the pertinent pretrial proceedings is necessary for disposition of the defendant’s appeal. Subsequent to being charged with the present offense, the defendant applied for and was found eligible to receive the services of a public defender. Attorney Judith Hoberman was appointed to represent him. Upon his plea of not guilty and election of trial by jury, the defendant’s case was assigned for trial on December 11, 1980.

Prior to the voir dire of the prospective jurors, the trial court was informed by Hoberman that the defendant had “expressed” to her “an interest to conduct a portion of his own defense.” Hoberman informed the trial court that she could not appear as co-counsel with the defendant, that she had suggested to him that he file a pro se appearance, and that she would move to withdraw her appearance for the defendant. Hoberman further informed the court that she would be willing to appear as the defendant’s standby counsel in the event he elected to proceed pro se.

The trial court then cautioned the defendant of the dangers of self-representation. Specifically, the trial court advised the defendant of the gravity of the offense with which he was charged, that if convicted he faced a possible sentence of up to five years of imprisonment, and that “a trial, particularly a trial to the jury, is going to require a very real degree of expertise to be properly conducted.” In explaining the latter point, the court cited the expertise needed to argue intelligently about the admissibility of evidence. The court then in no uncertain terms warned the defendant of the dangers of self-representation: “You’re putting yourself in a terrible position in attempting to represent yourself. You are not really cognizant of how a trial is conducted, what the appropriate law is, what the appropriate rules of evidence are and that sort of thing. You realize to be a lawyer requires three years of graduate school just to start. Now you can’t possible [sic] have that background expertise.”

The defendant’s response to the court’s statements was: “What you said is quite true — As a matter of fact absolutely true, but what you don’t understand is that my counsel — I discussed with my counsel the case and she is just not going to submit things that I want submitted, that I feel need to be submitted, to the jury to understand what’s fully going on here.” Upon the court’s suggestion that, because of his counsel’s “expertise,” a decision not to develop “certain things” may have been necessary “under the rules of evidence,” the defendant declared: “Oh, yes they can be brought out and they will be brought out if I have anything to say about this. I am the one being accused. They drag me in here, accuse me and there’s no way I can see myself sitting here not saying anything in my defense.”

Hoberman then renewed her motion to withdraw. The trial court expressly asked the defendant whgther he realized that he was “entitled to be represented,” to which the defendant answered, “[r]ight.” The trial court asked the defendant whether he “realizefd] that this can run into a lot of technicalities, in the course of a trial, of which you are unaware.” The defendant responded that he did not “want to conduct a full trial,” but rather “[a]ll I want is a small portion — a little say. [Attorney Hoberman] will be conducting the trial.” The court then said: “Well, I can’t force a lawyer on you,” and the defendant stated: “So, please don’t let her go.” The court further inquired of the defendant whether “[kjnowing your rights and knowing the difficulties with which you are facing, nevertheless, you want to conduct your own defense?” The defendant responded, “I don’t want to conduct the whole trial, I just want to be able to have, you know, a say, a few things here and there. She would counsel me, of course, before I say it.”

The trial court then proposed that if the defendant filed “a pro se appearance” the court would grant Hoberman’s motion to withdraw but would also order her “to remain in attendance as standby counsel.” The court then instructed the clerk to ensure that the defendant was provided a pro se appearance form. Hoberman requested that the defendant be given “just a few moments to consider your Honor’s latest proposal,” but the defendant retorted: “I understand it perfectly well.” The court warned the defendant that further delay of the trial would not be permitted and directly asked the defendant: “Are you entering a pro se appearance or are you not?” The defendant responded affirmatively: “That’s correct.” The defendant filed his pro se appearance with the trial court which then granted Hoberman’s motion to withdraw her appearance as the defendant’s counsel. The court, however, appointed Hoberman as standby counsel for the defendant and directed her “to remain in attendance.”

The defendant thereafter presented his opening statement to the jury panel, in which he represented that he was a student “at Yale College with the Special Division Program,” and he personally conducted the voir dire during jury selection. Just prior to the presentation of evidence, the defendant orally moved to dismiss the charges against him on the ground that there was “no probable cause in the first place to arrest me.” During the hearing on this motion, the defendant, as he asserts in his brief, “requested that his counsel be re-appointed and withdrew his appearance.” Noting that the defendant had already “made a knowing waiver of the right to be represented by counsel,” the court granted the defendant’s request, and the pro se appearance was withdrawn. Later during the actual trial, the defendant changed his position and requested and was granted the court’s permission to conduct his representation on a pro se basis. Hoberman’s appearance was again withdrawn, and the court appointed her as the defendant’s standby counsel. The defendant then conducted the balance of his trial, including the presentation of final argument to the jury.

I

We address first the defendant’s claim that the trial court “caused him to conduct a portion of his trial alone without first obtaining a valid waiver” of his state and federal constitutional right to assistance of counsel. Specifically, the defendant argues that, because the “waiver” of his right to counsel should be held invalid on the ground that the record does not clearly demonstrate that he made “an unequivocal request to represent himself,” he is entitled to an automatic reversal of his conviction in that he had represented himself during a portion of the proceedings when the right to counsel had attached.

The state does not dispute that the defendant had a state and federal constitutional right to assistance of counsel during both the voir dire of the prospective jurors and the pretrial hearing on the defendant’s pro se motion to dismiss. In State v. Gethers, 193 Conn. 526, 480 A.2d 435 (1984), it is implicit that the court viewed the right to counsel as having attached during the stage of the proceeding involved in the voir dire of prospective jurors. Id., 532-33. This court also regards the voir dire under Connecticut law as “an integral part” of the criminal trial and a “critical stage” of the proceeding. Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); State v. Ibraimov, 187 Conn. 348, 357, 446 A.2d 382 (1982); State v. Canady, 187 Conn. 281, 289, 445 A.2d 895 (1982); 3 Wharton, Criminal Procedure (12th Ed. Torcia 1975) § 411. We turn next to the primary component of the defendant’s claim, i.e., the record does not clearly demonstrate that he made an unequivocal request to represent himself.

A criminal defendant is guaranteed the right to assistance of counsel under both the federal; see Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); and the state constitutions. See State v. Gethers, supra, 533. A criminal defendant also has the right to appear pro se in a state criminal trial “when he voluntarily and intelligently elects to do so.” Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see also State v. Gethers, supra, citing Lyles v. Estelle, 658 F.2d 1015, 1020 (5th Cir. 1981); see generally annot., 98 A.L.R.3d 13 (1980). The court in Faretta stated the rule as follows: “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. [458, 464-65, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S. Ct. 316, 92 L. Ed. 309 [1948] (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S. [269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942)].” Faretta v. California, supra, 835. In accordance with Faretta, we have recognized that “[n]othing more intricate than a voluntary and intelligent waiver of counsel is required of an accused to exercise his right to defend himself in person.” State v. Gethers, supra, 533, citing Faretta v. California, supra, 835.

In reciting the circumstances of that case, the Faretta court noted that: “Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel.” Faretta v. California, supra, 835. Some courts have extrapolated from this language a further requirement that the defendant’s request to proceed pro se must be clear and unequivocal; Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), cert. denied, 469 U.S. 966, 105 S. Ct. 366, 83 L. Ed. 2d 302 (1984); United States v. Tompkins, 623 F.2d 824, 827-28 (2d Cir. 1980); United States v. Bennett, 539 F.2d 45, 50 (10th Cir.), cert. denied, 429 U.S. 925, 97 S. Ct. 327, 50 L. Ed. 2d 293 (1976); State v. Crafts, 425 A.2d 194, 196 (Me. 1981); and the defendant contends that the record establishes that this he did not do. Our review of the record in this case, as we demonstrate below, reveals that the defendant did make a valid waiver of his constitutional right to counsel.

The defendant argues, and we agree, that the gist of his initial dialogue with the trial court, “accurately construed,” was a request to act as co-counsel along with his court-appointed attorney. The defendant’s request for hybrid representation was denied by the trial court, and we agree that this type of request should not be considered as a request to proceed pro se. See Raulerson v. Wainwright, supra, 808; United States v. Bennett, supra, 49. We note that the defendant’s court-appointed counsel expressed clearly her lack of willingness to serve as co-counsel with the defendant, and the record discloses that the defendant’s wish to be permitted hybrid representation status was the catalyst for Hoberman’s first motion to withdraw her appearance as his attorney.

The trial court, faced on the first scheduled day of trial with a defendant requesting a status to which he had no legal right; see Part II, infra; and a motion to withdraw from an attorney whom the defendant considered to be a “very good lawyer,” scrupulously attempted to accommodate the defendant’s desire to participate actively in conducting his defense within constitutional parameters. Cf. Moreno v. Estelle, 717 F.2d 171 (5th Cir. 1983). The court, after ensuring that the requirements for a valid waiver had been satisfied; see State v. Gethers, supra, 532-40; see generally Practice Book § 961; proposed that if the defendant wanted to proceed pro se, Hoberman would be appointed as his standby counsel to be available “for consultation” and ready “to step in” when the defendant during the trial realized he was “out of [his] depth.” The record establishes without question that the defendant affirmatively responded to this proposal, stated on the record that he understood it “perfectly well,” and accepted it both orally and by filing a written pro se appearance form.

If the trial court has first made appropriate inquiries regarding the defendant’s choice of representation, “the court can then properly insist that the defendant choose between representation by his existing counsel and proceeding pro se.” United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982). “A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive.” Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976). In the present case, the trial court heard statements from both the defendant and his counsel regarding their difference of opinion. The trial court then inquired of the defendant regarding the criteria for an effective waiver. See footnote 2, supra. “When a defendant is faced with the choice of proceeding with counsel he is not entirely happy with or defending pro se, the trial judge must satisfy himself that if the defendant chooses to proceed pro se, he does so knowingly, with a full understanding of the risks involved.” Cordoba v. Harris, 473 F. Sup. 632, 637 (S.D.N.Y. 1979). This the trial court did do, and the defendant makes no claim that the trial court failed to comply with Practice Book § 961.

First, the trial court expressly advised the defendant of his right to be represented by counsel. Second, the trial court warned the defendant at length about the dangers of self-representation. Third, the defendant was apprised of the nature of the proceedings against him, and of the potential exposure to punishment. See footnote 2, supra; see also State v. Gethers, supra, 537 (the trial court “may appropriately presume that defense counsel has explained the nature of the offense in sufficient detail”); cf. State v. Barker, 35 Wash. App. 388, 393-94, 667 P.2d 108 (1983). Fourth, the defendant actively participated in the colloquies involved, which were both informative and lively. Fifth, the trial court had extensive opportunities to see, hear and evaluate the defendant’s intelligence and perceptions. On this record we conclude that the defendant did voluntarily and intelligently waive his constitutional right to counsel in choosing the option of proceeding pro se with standby counsel available to him; see Flowers v. Fair, 680 F.2d 261 (1st Cir.), cert. denied, 459 U.S. 946, 103 S. Ct. 262, 74 L. Ed. 2d 204 (1982); and the record establishes that “ 'he [knew] what he [was] doing and his choice [was] made with eyes open.’ ” Faretta v. California, supra, 835, citing Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942).

II

The defendant also claims that the trial court erred by denying him the right to hybrid representation that he contends is guaranteed by article first, § 8, of the constitution of the state of Connecticut. The key portion of that provision declares that “[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .” Conn. Const., art. I § 8. In his brief the defendant argues that the plain language of the provision “suggests that the right the framers [of the Connecticut constitution] sought to protect was the right of a criminal accused to present his case as co-counsel with his retained or appointed attorney, should he so desire.” (Emphasis in original.) The defendant also argues that “the standard tools of constitutional construction” demonstrate that “the provision must be interpreted so as to guarantee a right to hybrid representation.” We disagree and hold today that article first, § 8, of the Connecticut constitution does not guarantee the right to hybrid representation.

As a preliminary matter, it is necessary to define the term “hybrid representation,” also known as “co-counsel” status. The defendant explains that “[u]nder such a 'hybrid representation’ arrangement, both he and his attorney would conduct portions of his trial, while he retained ultimate control over defense strategy.” Accord 2 LaFave & Israel, Criminal Procedure (1984) § 11.5 (f); comment, “The Right to Appear Pro Se: Developments in the Law,” 59 Neb. L. Rev. 135,156-57 (1980); note, “The Accused as Co-Counsel: The Case for the Hybrid Defense,” 12 Val. U.L. Rev. 329, 339 (1978); see 21A Am. Jur. 2d, Criminal Law § 767 (1981). The state does not dispute that a hybrid representation arrangement involves “the joint presentation of his defense by him and by his counsel.” Theoretically, hybrid representation can be considered as the ultimate product of a criminal defendant’s “partial waiver” of both his Faretta right to self-representation and his right to assistance of counsel. 2 LaFave & Israel, supra. The record indicates that, in the pertinent proceedings, the defendant’s initial colloquy with the trial court could be fairly construed as a request for hybrid representation, although he never explicitly requested “co-counsel” or “hybrid” status.

The defendant premises his hybrid representation claim on the state rather than the federal constitution. It has been uniformly established that the right to counsel under the sixth amendment to the federal constitution does not guarantee a criminal defendant the right to hybrid representation. The United States Supreme Court recently indicated that “Faretta does not require a trial judge to permit ‘hybrid’ representation of the type Wiggins was actually allowed.” McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S. Ct. 944, 79 L. Ed. 2d 122, reh. denied, 465 U.S. 1112, 104 S. Ct. 1620, 80 L. Ed. 2d 148, on remand, 729 F.2d 1026 (5th Cir. 1984). Quite clearly, there is no federal constitutional right to hybrid representation. And it must be remembered that, “although we fully recognize the primary independent vitality of the provisions of our own constitution”; Horton v. Meskill, 172 Conn. 615, 641, 376 A.2d 359 (1977); “the decisions of the United States Supreme Court defining federal constitutional rights are, at the least, persuasive authority”; id.; and thus maybe “afforded respectful consideration.” Id., 642; see also Cologne v. Westfarms Associates, 192 Conn. 48, 66, 469 A.2d 1201 (1984).

The defendant essentially argues that the plain meaning of the pertinent clause of article first, § 8, compels the conclusion that the right to hybrid representation is one guaranteed by our state constitution. Again, the constitutional language, which is the focus of this claim on appeal, provides that “[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .” (Emphasis added.) Conn. Const., art. I § 8. The defendant argues that the framers’ use of the conjunctive “and” rather than the disjunctive “or” and the application of the phrase “to be heard” supports his position.

“In dealing with constitutional provisions we must assume that infinite care was employed to couch in scrupulously fitting language a proposal aimed at establishing or changing the organic law of the state. Cahill v. Leopold, 141 Conn. 1, 19, 103 A.2d 818 [1954]; 1 Cooley, Constitutional Limitations (8th Ed.) p. 125. Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.” Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub. nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981). Although the simplicity of the defendant’s argument may have some superficial appeal, important questions involving constitutional principles, as a general rule, “cannot be so easily solved.” Adams v. Rubinow, 157 Conn. 150, 155, 251 A.2d 49 (1968). We find the defendant’s “plain meaning” argument unpersuasive.

In his brief, the defendant maintains the plain language of article first, § 8, “clearly suggests that the right the framers sought to protect was the right of a criminal accused to present his case as co-counsel with his retained or appointed attorney, should he so desire.” (Emphasis in original.) We have previously noted, however, that “[similar provisions in other states have not been construed to entitle an accused as a matter of right to be heard by both himself and by counsel.” State v. Carr, 172 Conn. 458, 475, 374 A.2d 1107 (1977). Constitutional framers’ selection of the word “and” in comparable “right to be heard” provisions in other jurisdictions has been held not to encompass a state constitutional guarantee: to “a right to representation and self-representation simultaneously”; Hooks v. State, 416 A.2d 189, 199 (Del. 1980); to “simultaneous enjoyment” of “these two basic rights”; State v. Burkhart, 541 S.W.2d 365, 369 (Tenn. 1976); “to have his case presented in court by both himself and counsel acting at the same time”; People v. Sharp, 7 Cal. 3d 448, 459, 499 P.2d 489, 103 Cal. Rptr. 233 (1972), citing People v. Mattson, 51 Cal. 2d 777, 336 P.2d 937 (1959); State v. Burgin, 539 S.W.2d 652, 654 (Mo. 1976), citing State v. Velanti, 331 S.W.2d 542, 546 (Mo. 1960); “to be represented by counsel and at the same time actively conduct his own defense”; Moore v. People, 171 Colo. 338, 346, 467 P.2d 50 (1970), citing People v. Mattson, supra; to “an absolute right of the defendant to actively participate, with his counsel, in the trial of his case”; Moore v. State, 83 Wis. 2d 285, 298, 265 N.W.2d 540, cert. denied, 439 U.S. 956, 99 S. Ct. 356, 58 L. Ed. 2d 348 (1978); or “may intermittently use and then discard counsel.” State v. Whitlow, 13 Or. App. 607, 610, 510 P.2d 1354 (1973); accord Mosby v. State, 457 S.W.2d 836, 839-40 (Ark. 1970); People v. Mirenda, 57 N.Y.2d 261, 265-66 n., 442 N.E.2d 49, 455 N.Y.S.2d 752 (1982) (state constitutional provision allowing criminal defendant “to appear and defend in person and by counsel” refers to two separate rights that are not to be exercised “both at the same time”); cf. Burney v. State, 244 Ga. 33, 36, 257 S.E.2d 543, cert. denied, 444 U.S. 970, 100 S. Ct. 463, 62 L. Ed. 2d 385 (1979) (state constitution provides that “[n]o person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this state, in person, by attorney, or both”); Gray v. Mississippi, 351 So. 2d 1342, 1345 (Miss. 1977) (state constitution provides that “the accused shall have a right to be heard by himself or counsel, or both”); contra Wake v. Barker, 514 S.W.2d 692 (Ky. App. 1974). Thus, the weight of authority overwhelmingly demonstrates that the defendant’s suggested construction of “and” in article first, § 8, is far from plain. See State v. Carr, supra.

In sum, we are not persuaded that the framers’ use of the conjunctive in article first, § 8, manifests an intent to guarantee hybrid representation. “ ‘If the words have a doubtful meaning, or are susceptible of two meanings, they should receive that which will effectuate the intent of the framers of the Constitution and the general intent of the instrument.’ Borino v. Lounsbury, 86 Conn. 622, 625, 86 A. 597 (1913).” Cologne v. Westfarms Associates, supra, 62.

The Borino rule also assists in our analysis of the phrase, “right to be heard,” in § 8 of article first. Historical background, where there is ambiguity, may be utilized as a proper tool to discern the framers’ intent in drafting the language of constitutional provisions; see Cologne v. Westfarms Associates, supra; or of legislative enactments. See Perille v. Raybestos-ManhattanEurope, Inc., 196 Conn. 529, 494 A.2d 555 (1985). Constitutional interpretation can be “necessarily influenced” by recognition of a provision’s historical roots, including its English common law antecedents. Borino v. Lounsbury, supra, 629; see Faretta v. California, supra, 821-22. Our examination of the historical background of article first, § 8, discloses that there are two related yet separate legal developments that may have culminated in the original adoption of this provision of the first Connecticut constitution in 1818.

First, the independent right of an individual accused of the commission of a crime to self-representation had evolved. See generally Faretta v. California, supra. “[U]nder the ancient English common law a person on trial for a felony was not allowed counsel and was not a competent witness in his own behalf.” State v. Carr, supra, 473. In cases involving other crimes that were prosecuted in the Star Chamber, a defendant was compelled “to accept representation by counsel whose object was to avoid the disapprobation which would follow if anything in the defendant’s answer to the indictment offended the Crown.” Hooks v. State, supra, 199; see also Faretta v. California, supra, 821-23. During interrogation conducted in the Star Chamber, the accused was not permitted assistance of counsel. Note, “Assistance of Counsel: A Right to Hybrid Representation,” 57 B.U.L. Rev. 570, 577 (1977). After the elimination of the Star Chamber, “every litigant was required to ‘appear before the court in his own person and conduct his own cause in his own words.’ ” (Footnote omitted.) Faretta v. California, supra, 823. The legal fiction had emerged that the presiding judge could serve in these undoubtedly inquisitorial proceedings as counsel for the accused. Id., 824 n.21; State v. Carr, supra, 473; State v. Hoyt, 47 Conn. 518, 543-44 (1880); note, 57 B.U.L. Rev., supra, 577. Incremental statutory reform commencing in late seventeenth century England provided criminal defendants with the option of presenting a defense “ ‘by Counsel learned in the Law.’ ” Faretta v. California, supra, 824; see also State v. Burkhart, supra, 367; note, 57 B.U.L. Rev., supra. The right to counsel thus emerged “as guaranteeing a choice between representation by counsel and the traditional practice of self-representation.” Faretta v. California, supra, 825; see also State v. Burkhart, supra.

Historically, “[i]n the American Colonies the insistence upon a right of self-representation was, if anything, more fervent than in England.” Faretta v. California, supra, 826. As a general proposition, the scope of the right to counsel in early colonial times was probably limited, just as it had been in England. See note, 57 B.U.L. Rev., supra, 578. Because lawyers in colonial America were identified with the Crown, distrust of lawyers was institutionalized as several colonies, including Connecticut, initially “prohibited pleading for hire in the 17th century.” Faretta v. California, supra, 827 and n.32. By the end of that century, however, the right to counsel had been established in Connecticut. Id., n.35; 2 Swift, A System of the Laws of the State of Connecticut (1796) pp. 398-99. Appointment of counsel was “the practice in Connecticut in the latter part of the 18th century; appointment apparently was sometimes made even when the accused failed to request counsel, if he appeared in need of a lawyer, but there is no indication appointment was ever made over the objection of the accused.” Faretta v. California, supra, 830 n.40, citing 2 Swift, supra, 392.

Thus, by the time of the adoption of our first state constitution in 1818, a defendant in a criminal case had the right to present a defense, including one by counsel, if he so chose. Under the rationale as espoused by the recent illustrative decision in Hooks v. State, supra, our constitutional provision guaranteeing “a right to be heard by himself and by counsel” simply “was addressed to securing both of these equally important fundamental rights. But we are not persuaded that a hybrid representation arrangement would be in any way consistent with or of assistance to the framers’ original intent. The discussion in Faretta clearly shows that the states envisioned the right to counsel as an adjunct to the ever-present right to self-representation, available if the defendant wishes to make use of it.” Id., 199; see Betts v. Brady, 316 U.S. 455, 466, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942).

The second development in the law involved the competency of a criminal defendant to testify on his own behalf at trial. The ancient common law rule was “that a person charged with a criminal offense is incompetent to testify under oath in his own behalf at his trial.” Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961). In our examination of the English common law system, we have already indicated that after the English revolution the defendant was permitted to argue on his own behalf at trial. Faretta v. California, supra, 823-24. “In the process the defendant could offer by way of explanation material that would later be characterized as testimony. . . . In the seventeenth century, however, he was allowed to call witnesses in his behalf; the right to have them sworn was accorded by statute for treason in 1695 and for all felony in 1701. 7 Will. Ill, c. 3; 1 Anne, St. 2, c. 9. ... A distinction was drawn between the accused and his witnesses — they gave evidence but he did not. . . . The general acceptance of the interest rationale as a basis for disqualification reinforced this distinction, since the criminal defendant was, of course, par excellence an interested witness.” (Emphasis in original.) Ferguson v. Georgia, supra, 574.

This rule was the law in Connecticut when the state constitution was adopted: “It is a general rule in criminal cases, that a person who is either to be a gainer, or loser in the event of the cause, in which he is called to give evidence, is incompetent, and cannot be examined.” Swift, A Digest of the Law of Evidence in Civil and Criminal Cases (1810) p. 69; see generally Lucas v. State, 23 Conn. 18 (1854). However, the defendant, as explained above, had the right to make his oral statement, unsworn, in his case. In 1867, the common law disability prohibiting a defendant from testifying under oath was abrogated by statute in Connecticut. See General Statutes § 54-84.

By 1818, then, one accused of a crime in our state had no right to testify in his own behalf. He could, however, be “heard” in his role as defendant by making an unsworn statement himself. The provision in article first, § 8, that guarantees the accused “a right to be heard by himself and by counsel” may have been intended by the framers “to insure that every accused citizen enjoyed the benefit of counsel and a correlative right to be heard in person.” (Emphasis in original.) State v. Burkhart, supra, 371. Under the rationale espoused by such cases as Burkhart and Landers v. State, 550 S.W.2d 272 (Tex. Crim. App. 1977), article first, § 8, was “intended to afford an accused the right to participate and be heard in his trial while at the same time removing the restrictions to full representation and participation of counsel.” Landers v. State, supra, 277; see also State v. Burkhart, supra. The short answer to the critics of this line of reasoning that it causes the phrase, “to be heard,” “to have different meanings as to the terms himself, or counsel or both”; Landers v. State, supra, 281 (Phillips, J., dissenting); is that this theory assumes the framers’ intent that each would be “heard” in accordance with his respective accepted role as defined at that time in history. The defendant could at that time appear as an unsworn witness represented by counsel. If the accused, however, chose to represent himself, then he would be “heard” in the capacity of counsel as well as in that of defendant. After the disqualification of a defendant as a witness was removed by statute his right to make an unsworn statement was replaced by the right to testify. See Landers v. State, supra.

In any event, we need not base our resolution of this issue on an express selection between these two historical developments. In light of all this background, we instead are persuaded that to accept the defendant’s argument that article first, § 8, guarantees a right to hybrid representation would be tantamount to viewing that provision’s language “as newly descended from the firmament like fresh fallen snow”; Cologne v. Westfarms Associates, supra, 62; as there is scant evidence that the framers ever intended, much less imagined, any such result. That provision has not previously been so construed by this court. See State v. Carr, supra, 475. In conclusion, we decline the defendant’s invitation to so construe this provision of our state constitution.

III

The defendant also claims that the trial court committed reversible error by granting defense counsel Hoberman’s motion to withdraw in that the court did not first establish “good cause”; see Practice Book § 632; and by restricting the role of his standby counsel so as to violate Practice Book § 964. The state counters that these claims, raised for the first time on appeal, have not been properly preserved for appellate review. In neither his brief nor his reply brief does the defendant address the state’s argument that these claims have not been preserved for our review.

Our rules of practice, of course, require that a party, in order to preserve a claim for appeal, “distinctly [raise]” it at trial. Practice Book § 3063; see also Practice Book § 315; State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973). As we stated in Evans, supra, 70, and have reiterated since, it is only in “exceptional circumstances” “that newly raised claims can and will be considered by this court.” The first such circumstance involving a recently discovered constitutional right is inapposite to these claims. Nor is the second exceptional circumstance, the deprivation “of a fundamental constitutional right and a fair trial,” implicated here. Id. We do note, however, that the record, fairly read, supports the state’s position that the defendant received a fundamentally fair trial, and the defendant asserts no claim to the contrary.

There is no error.

In this opinion the other judges concurred.

       Attorney Judith Hoberman’s opening statement to the trial court was in its entirety as follows:
      “Ms. Hoberman: If I may proceed preliminarily. My client, although some of the papers refer to him as David Gethers, has formally changed his name to Donald Galland and during the course of these proceedings he wishes to be referred to as Donald Galland. I had anticipated filing a motion right now.
      “Before we do that, however, Mr. Galland has expressed to me an interest to conduct a portion of his own defense. I have discussed that it is impossible for me to co-counsel his case with him. If he wishes to conduct his defense, I suggested that he file a pro se appearance and that I move to withdraw as counsel in the matter. I would be happy to advise him and sit at the counsel table with him as adviser.”
      See State v. Gethers, 193 Conn. 526, 527 n.1, 480 A.2d 435 (1984), regarding the defendant’s legal change of name.

       The following is the trial court’s advisement through this point in time:
      “The Court: All right. Mr. Galland, you are charged with a very serious offense. Tampering with a witness is classified — it’s what we call a class D felony. Now, that title doesn’t mean much to you, but it is sufficiently serious so that what you face is possible punishment of up to five years. You have got to realize that a trial, particularly a trial to the jury, is going to require a very real degree of expertise to be properly conducted. For instance, there may well be questions as to admissibility of evidence. I doubt very much that you would have the training and the background to be able to argue intelligently as to whether or not a particular piece of evidence was admissible or not.
      “Now, this can come up in several different ways. It may be that the state is offering evidence to which a proper objection can be made and you won’t know it. It may be that you are attempting to offer evidence on your own behalf which is not admissible and you have framed your defense around this thing that isn’t admissible.”

       The trial court then attempted to clarify the nature of the defendant’s position:
      “The Court: Well, let me get it straight. You say you want to say a few things. Do you mean you yourself want to testify?
      “Mr. Galland: No. No.
      “The Court: O.K. You have the absolute right not to testify; you realize that? No inference can be drawn for failure to testify.
      “Mr. Galland: I am the one who has to suffer the consequences.”

       The following is the trial court’s oral proposal to the defendant: “What I am going to do is this, sir. If you will file a pro se appearance, I am granting the motion of your present counsel to withdraw. However, I will order her to remain in attendance as stand-by counsel. I think sometime during the trial you are going to finally realize you are out of your depth and if she stays in the room as stand-by counsel and is available to you for consultation, she will be available to step in when we reach that stage, which I am sure we will, when you realize this is something above and beyond you.”

       The following is pertinent to the defendant’s request:
      “[Assistant State’s Attorney]: Your Honor, the explanation having been made on the record, after the defendant’s request, I would now ask the court to again question the defendant as to whether or not he wishes to continue to now having been informed under the conditions stated on the record.
      “The Court: All right. I asked you before if you wanted to withdraw your pro se appearance and have Ms. Hoberman appear on your behalf and your answer was yes. Now, you have heard an explanation by her as to her understanding of what her role will be. Having heard that explanation, do you still wish to withdraw your pro se appearance and have Ms. Hoberman represent you?
      “[The Defendant]: Yes.”

       A review of the transcript reveals that the defendant had a “substantial disagreement over the defense” with his counsel, Hoberman, who again requested permission to withdraw as counsel. See footnote 9, infra. The defendant explicitly agreed to proceed pro se and to have Hoberman available only in the role of standby counsel. The trial court then inquired of the defendant as to whether he understood that he had a right to counsel, that he was facing a felony charge with “the possibility of a substantial amount of prison time,” and that in light of “all that, nevertheless, you want her to get out and you will conduct the trial.” The defendant responded affirmatively to all these questions.

       The watershed case on waiver of the right to counsel, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), established that any waiver must be “an intentional . . . abandonment of a known right or privilege”; id., 464; and must be “intelligent and competent.” Id., 465. This formulation was consistently reaffirmed by the United States Supreme Court. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (“the accused must ‘knowingly and intelligently’ forgo those relinquished benefits”); Carnley v. Cochran, 369 U.S. 506, 513, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962) (accused must “intelligently and understandingly waive the assistance of counsel”); Von Moltke v. Gillies, 332 U.S. 708, 727, 68 S. Ct. 316, 92 L. Ed. 309 (1948) (waiver must be entered “competently, intelligently, and with full understanding of the implications”); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942) (accused may waive counsel “if he knows what he is doing and his choice is made with eyes open”); see State v. Gethers, 193 Conn. 526, 547-48, 480 A.2d 435 (1984) (Healey, J., dissenting).

       The “clear and unequivocal request” formulation has been said to have developed primarily as a standard designed to minimize abuses by criminal defendants who might be inclined to manipulate the system. See generally comment, “The Right to Appear Pro Se: Developments in the Law,” 59 Neb. L. Rev. 135, 141-43 (1980). “If an unequivocal request were not required, convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel.” (Citations omitted.) United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir. 1965), cert. denied sub nom. DiBlasi v. McMann, 384 U.S. 1007, 86 S. Ct. 1940, 16 L. Ed. 2d 1020 (1966); accord Moreno
        v. Estelle, 717 F.2d 171, 176 (5th Cir. 1983); Flowers v. Fair, 680 F.2d 261, 262 (1st Cir.), cert. denied, 459 U.S. 946, 103 S. Ct. 262, 74 L. Ed. 2d 204 (1982); United States v. Tompkins, 623 F.2d 824, 828 (2d Cir. 1980); State v. Crafts, 425 A.2d 194, 196 (Me. 1981). In light of this possibility, it has been held that the burden of proof rests on the defendant to establish that he did not validly waive his right to counsel. Maynard v. Meachum, 545 F.2d 273, 277-78 (1st Cir. 1976), citing Moore v. Michigan, 355 U.S. 155, 161, 78 S. Ct. 191, 2 L. Ed. 2d 167 (1957); see also State v. Nash, 149 Conn. 655, 662, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962), cited with approval in State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984); but see Commonwealth v. Palmer, 315 Pa. Super. 601, 609, 462 A.2d 755 (1983). Trial courts, of course, are required to ensure compliance with Practice Book § 961 and should not allow a defendant to proceed pro se absent a valid waiver of his constitutional right to assistance of counsel.

       We are not unmindful that occasions may arise where a defense counsel may not be free to advise the court expressly why withdrawal is essential. For example, the defendant may inform his counsel that a defense witness, or even the defendant himself, intends to commit perjury while testifying under oath. As an officer of the court the defense counsel then may inform the court, without violating his client’s confidence, that he must withdraw. See Code of Professional Responsibility DR 2-110.
      A “hybrid” representation situation “may present the attorney with a moral dilemma so serious that a conflict of interest arises; in this case permissive withdrawal is the only realistic solution available to the unhappy attorney.” Chused, “Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics,” 65 Cal. L. Rev. 636, 669 (1977).

       It has been suggested that, in cases in which such a difference of opinion arises between the defendant and his attorney, the trial court’s duty of inquiry indeed might be required to include the notification of the defendant’s Faretta right to proceed pro se. Chused, “Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics,” 65 Cal. L. Rev. 636, 664 n.133, 667 n.145 (1977); see Faretta v. California, 422 U.S. 806, 852, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (Blackmun, J., dissenting).

       Practice Book § 961, which “was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney in defending himself . . .”; State v. Gethers, 193 Conn. 526, 532, 480 A.2d 435 (1984); and which is entitled “Waiver,” 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 Gethers court stated that, although “a more formal inquiry involving specific consideration of each element of the rule is preferable,” an “insubstantial” departure from the rule will not constitute a denial of a defendant’s constitutional right “unless it [is] shown that his waiver of counsel was involuntary or uninformed.” State v. Gethers, supra, 539-40.

       The record in this case demonstrates that the defendant made a valid and effective waiver of his constitutional right to counsel even more clearly than that in State v. Gethers, 193 Conn. 526, 480 A.2d 435 (1984), in which this court found a valid waiver.

       Section 8 of article first of the constitution of the state of Connecticut provides in part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed.”

       Although remarking that “the defendant never presented to the trial court his claim that he had a state constitutional right to hybrid representation,” the state in its brief does not dispute that the defendant’s claim is nevertheless reviewable on appeal because of its implications relating to the defendant’s fundamental constitutional rights to assistance of counsel and to a fair trial. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       The hybrid representation model thus differs from self-representation with standby counsel serving the pro se defendant, principally in an advisory capacity, within the parameters of Practice Book § 964. See, e.g, United States v. Gaines, 416 F. Sup. 1047, 1050 (N.D. Ind. 1976); see generally Chused, “Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics,” 65 Cal. L. Rev. 636, 660-61 (1977); comment, “The Right to Appear Pro Se: Developments in the Law,” 59 Neb. L. Rev. 135, 154-56 (1980).

       The state does not dispute that the defendant in fact requested hybrid representation. Instead, the state specifically argues that “the ruling of the trial court denying the defendant’s request to appear as co-counsel was one grounded upon its sound discretion, rather than upon our state constitution.” It should be noted, however, that Hoberman, informing the court of the defendant’s “interest” in conducting “a portion of his own defense,” did expressly use the term “co-counsel” in her oral statement of the defendant’s position. See footnote 1, supra.

       The list of decisions rejecting the argument that a right to hybrid representation is compelled under the federal constitution is rather lengthy. Prior to the Faretta decision in 1975, the federal courts uniformly rejected the constitutional basis for hybrid representation status. See, e.g., United States v. Conder, 423 F.2d 904 (6th Cir.), cert. denied sub nom. Pegram v. United States, 400 U.S. 958, 91 S. Ct. 357, 27 L. Ed. 2d 267 (1970); Brasier v. Jeary, 256 F.2d 474 (8th Cir.), cert. denied, 358 U.S. 867, 79 S. Ct. 97, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 923, 79 S. Ct. 286, 3 L. Ed. 2d 242 (1958); United States v. Private Brands, 250 F.2d 554 (2d Cir. 1957), cert. denied, 355 U.S. 957, 78 S. Ct. 542, 2 L. Ed. 2d 532 (1958). The federal courts, it must be remembered, have been able to rely, at least in part, on 28 U.S.C. § 1654, which provides that “[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel. ...” That federal statute, however, withstood constitutional attack on the hybrid representation issue in at least one case. Shelton v. United States, 205 F.2d 806 (5th Cir.), cert. dismissed on petitioner’s motion, 346 U.S. 892, 74 S. Ct. 230, 98 L. Ed. 395 (1953), motion to vacate denied, 349 U.S. 943, 75 S. Ct. 876, 99 L. Ed. 1269 (1955). Pre-Faretta state court decisions also expressed the belief that no federal constitutional right to hybrid representation existed. See, e.g., People v. Mattson, 51 Cal. 2d 777, 787-88 n.3, 336 P.2d 937 (1959). The one state court exception revealed by our research is Wake v. Barker, 514 S.W.2d 692, 696 (Ky. App. 1974) (hybrid status “is embraced within the right-to-counsel and equal-protection provisions of the federal and state constitutions”). See note, “The Accused as Co-Counsel: The Case for the Hybrid Defense,” 12 Val. U.L. Rev. 329, 338 (1978); annot., 77 A.L.R.2d 1233 (1961), and later case service (1975).
      The post-Faretta case law continues to reject the claim that the federal constitution guarantees a right to hybrid representation. See, e.g., United States v. Kimmel, 672 F.2d 720 (9th Cir. 1982); United States v. Dunlap, 577 F.2d 867 (4th Cir.), cert. denied, 439 U.S. 858, 99 S. Ct. 174, 58 L. Ed. 2d 166 (1978); United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S. Ct. 1676, 48 L. Ed. 2d 182 (1976); United States v. Wolfish, 525 F.2d 457 (1975), cert. denied, 423 U.S. 1059, 96 S. Ct. 794, 46 L. Ed. 2d 649 (1976); Hooks v. State, 416 A.2d 189 (Del. 1980); Commonwealth v. Palmer, 315 Pa. Super. 601, 610, 462 A.2d 755 (1983); Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540, cert. denied, 439 U.S. 956, 99 S. Ct. 356, 58 L. Ed. 2d 348 (1978).

       In McKaskle, the defendant Wiggins objected to the unsolicited participation of his court-appointed standby counsel but had expressly agreed to his counsel’s presentation of a statement to the jury. McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 948, 79 L. Ed. 2d 122, reh. denied, 465 U.S. 1112, 104 S. Ct. 1620, 80 L. Ed. 2d 148, on remand, 729 F.2d 1026 (5th Cir. 1984). We note that the McKaskle court said: “A defendant does not have a constitutional right to choreograph special appearances by counsel.” Id., 183.

       In 1708, the General Assembly enacted a law which provided that “[n]o person, except in his own case, [should] be admitted to make any plea at the bar, without being first approved of by the court before whom the plea is to be made.” Farrell, The Superior Court Diary of William Samuel Johnson 1772-1773 (1942) p. liii. The 1708 act was repealed in 1730 when legislation was enacted that there should be a maximum of eleven attorneys in the Connecticut colony. Id.

       The court in Faretta v. California, 422 U.S. 806, 827 n.35, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), quoted the following passage from Zephaniah Swift’s early legal treatise:
      “We have never admitted that cruel and illiberal principle of the common law of England, that when a man is on trial for his life, he shall be refused counsel, and denied those means of defence, which are allowed, when the most trifling pittance of property is in question. The flimsy pretence, that the court are to be counsel for the prisoner will only heighten our indignation at the practice: for it is apparent to the least consideration, that a court can never furnish a person accused of a crime with the advice, and assistance necessary to make his defence. . . .
      “Our ancestors, when they first enacted their laws respecting crimes, influenced by the illiberal principles which they had imbibed in their native country, denied counsel to prisoners to plead for them to any thing but points of law. It is manifest that there is as much necessity for counsel to investigate matters of fact, as points of law, if truth is to be discovered.” 2 Swift, A System of the Laws of the State of Connecticut (1796) pp. 398-99.

       The Delaware constitution, article first, § 7, provides in pertinent part: “In all criminal prosecutions, the accused has a right to be heard by himself and his counsel.”

       The sentiment in Connecticut was apparently in agreement with Jeremy Bentham’s earlier reform movement in England, which espoused “contending always for rules that would not exclude but would let in the truth”; Ferguson v. Georgia, 365 U.S. 570, 575, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961); Connecticut was one of the earliest states to pass a general witness competency statute, doing so in 1867. See generally State v. Buxton, 79 Conn. 477, 478-79, 65 A. 957 (1907).

       The Tennessee constitution, article first, § 9, provides in pertinent part: “That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel. . . .” “The right of a defendant to participate in his own defense is an alternative one.” State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982).

       The defendant also asserts the argument that, because our state constitution was modeled on the Mississippi constitution, we should accept as a “compelling rationale” that state’s recognition of the constitutional right to hybrid representation. See Gray v. State, 351 So. 2d 1342 (Miss. 1977). The language contained in article first, § 10, of the original Mississippi constitution of 1817, guaranteeing the right of an accused to “be heard by himself and counsel” was revised during the Mississippi constitutional convention of 1832 to provide that “[i]n all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both. . . .’’(Emphasis added.) Mississippi Constitution, art. 3 § 26. The defendant without citation of authority states in his brief that this revision was “plainly a clarification and reaffirmation of the scope of the right intended to be guaranteed.” Although the Gray court did hold the trial court’s denial of the defendant’s request to make a statement to the jury during argument at the guilt phase of his capital murder trial violated article third, § 26, the court’s opinion on this issue is only one paragraph in length and does not mention in any fashion the purported interpretation of the revision as asserted by the defendant. Gray v. State, supra, 1345.
      Although the defendant also relies on the writings of Zephaniah Swift to support his claim and to counter the state’s arguments, our review of those sources, other than as noted previously in this opinion, shows them to be inconclusive. See, e.g., 2 Swift, Digest (1823) p. 396 (“Formerly, in this State, the same principle was adopted, that counsel should be admitted only to questions of law: but for some time past, prisoners have been admitted to a full defence by counsel in criminal cases: and this important privilege is guaranteed to them by the constitution, which provides that, in all criminal cases, the accused shall have a right to be heard by himself, and by counsel. . . .”) See also 2 Dutton, A Revision of Swift’s Digest (1853) p. 421 (to the same effect).

       The defendant does not claim that the trial court abused its discretion in denying his request for a hybrid representation arrangement.
      It appears to be settled after Faretta that concerns involving judicial administration may not frustrate a defendant’s choice to proceed pro se or with counsel. See Faretta v. California, 422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); 2 LaFave & Israel, Criminal Procedure (1984) § 11.5, p. 52. Nevertheless, sound policy reasons have been offered for not establishing an absolute right to hybrid representation. As one postFaretta court succinctly stated: “This rule recognizes that the conflicting interests of the accused and society involved in a criminal trial can be served only in an orderly proceeding. The trial judge must therefore have discretion to control the conduct of a trial to maintain dignity, decorum and orderly procedures; to avoid unnecessary delays; and to prevent the disruption of the judicial process by the accused’s inept or disorderly self-representation. This approach reflects the fact that no right is more important to the accused and to society than the right to a fair, orderly trial.” Moore v. State, 83 Wis. 2d 285, 300, 265 N.W.2d 540, cert. denied, 439 U.S. 956, 99 S. Ct. 356, 58 L. Ed. 2d 348 (1978); accord Mosby v. State, 457 S.W.2d 836, 840 (Ark. 1970); People v. Mattson, 51 Cal. 2d 777, 792, 336 P.2d 937 (1959); People v. Mirenda, 57 N.Y.2d 261, 266, 442 N.E.2d 49, 455 N.Y.S.2d 752 (1982); State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976); contra Chused, “Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics,” 65 Col. L. Rev. 636, 652-56 (1977). For a thoughtful exposition on the problems that defense counsel might experience with hybrid representation, see People v. Mattson, supra, 793. Accord Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977); see generally note, “The Accused as Co-Counsel: The Case for the Hybrid Defense,” 12 Val. U.L. Rev. 329, 341-52 (1978).

       In regard to the claim involving Practice Book § 632, the record plainly reveals that the trial court granted the defendant’s appointed counsel’s motion to withdraw only after the defendant exercised his option to enter a pro se appearance, a situation that is closely analogous to a discharge of counsel. See Code of Professional Responsibility DR 2-110 (B) (4). As to the § 964 claim, the defendant or his standby counsel could have raised this argument to the court at trial. This they did not do.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. John E. Vitale, Jr.
    (10522)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued June 11
    decision released September 10, 1985

      Joseph G. Bruckmann, assistant public defender, with whom were Joette Katz, public defender, and, on the brief, Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      CarlSchuman, assistant state’s attorney, with whom, on the brief, were Dennis A. Santore, state’s attorney, and Erin M. Kallaugher, law student intern, for the appellee (state).
   Callahan, J.

On September 18,1978, a grand jury for Litchfield county indicted the defendant, John E. Vitale, Jr., and three codefendants, Stanley Chenkus, Joseph LeBlanc and James Calca, for two counts of felony murder in violation of General Statutes § ñSa-Mc in connection with the deaths of Bruce M. Gilbert and Henry J. Kulesza. The defendant pleaded not guilty to both counts of the indictment and elected to be tried by a jury, as did James Calca. Chenkus and LeBlanc entered into plea negotiations with the state, pleaded guilty to reduced charges of conspiracy to commit robbery and testified at the trial of the defendant and Calca. The trial resulted in a hung jury and the declaration of a mistrial. Subsequently Calca changed his plea.

The defendant was tried a second time alone, and on August 8,1980, a jury found him guilty of both counts of felony murder charged in the indictment. Chenkus and LeBlanc testified again at the second trial. On September 19,1980, the trial court sentenced the defendant on each count of the indictment to consecutive terms of not less than twelve years to life imprisonment, thereby imposing an effective sentence of not less than twenty-four years to life.

The defendant has appealed claiming: (1) a violation of his constitutional right to confront the witnesses against him; (2) error in an evidentiary ruling by the trial court; (3) error in the trial court’s refusal to charge the jury on larceny in the fourth degree as a lesser included offense of felony murder; (4) a violation of his fifth and sixth amendment rights under the federal constitution by the admission into evidence of statements the defendant made to a correction officer; and (5) the denial of effective assistance of counsel. We find no error.

The jury could reasonably have found the following facts. On the afternoon of May 3, 1978, the bodies of Bruce Gilbert and Henry Kulesza were found in their combination home-antique shop in Woodbury. Gilbert was lying dead on the kitchen floor. His death was attributed to stab wounds of the abdomen. Kulesza’s body was discovered at the foot of a set of stairs. His death was caused by multiple fractures of the skull and stab wounds of the chest. Death in both instances had occurred the previous night. The premises were in disarray, and the upstairs rooms, one of which contained a safe, appeared to have been ransacked.

In the early evening of May 2,1978, Joseph LeBlanc and James Calca, while at Calca’s home in Waterbury, made plans to commit a burglary that night. They made several telephone calls and enlisted the aid of the defendant and Stanley Chenkus. The four men left Waterbury and rode to Southbury in a Ford station wagon driven by the defendant, looking for a place to burglarize. Unable to accomplish their purpose in Southbury, they left and eventually arrived in Wood-bury at the home of the victims. The defendant went to the back door and, on the pretext that he wished to use the telephone, was admitted to the house. He returned to the car in about twenty to twenty-five minutes and told the others that two gay men lived there, that they were drunk, and that one was going to bed and the other wanted the defendant to return in about thirty minutes. The four went to a restaurant for coffee, but found it closed and drove back to the victims’ house.

When they returned to the house, the defendant entered first, followed by Calca. Chenkus and LeBlanc remained outside, smoking marijuana. Once inside, Calca grabbed Gilbert and demanded the combination to the safe. Gilbert started to yell and was assaulted with karate blows by the defendant. The defendant then met Kulesza coming down the stairs and knocked him to the floor.

The defendant ran out of the house and told Chenkus and LeBlanc to come inside. When they entered the house, the defendant first told Chenkus to tie up Gilbert, then told him to go upstairs to look for money. While Chenkus, LeBlanc and Calca were upstairs ransacking the rooms and prying open a safe, the defendant stabbed Kulesza. He then joined the others in looting the safe. Calca went downstairs, followed shortly by the others, who met Calca coming from the kitchen. Gilbert was dead in the kitchen.

The four left and returned to Waterbury in the Ford station wagon driven by the defendant. On the way, Calca disbursed the proceeds of the robbery, giving each participant approximately $1200 in cash. The four also split one hundred silver dollars. The defendant said that each could keep whatever jewelry he had stolen.

On the afternoon of May 4,1978, the defendant purchased a motorcycle from Family Cycle in Waterbury. The purchase price of $1189 plus the sales tax was paid in cash by the defendant.

On May 15,1978, the state police found a jewelry box and a set of cameo cuff links beneath the driver’s seat of a 1973 Ford station wagon which was registered to the defendant’s grandmother. The car had been seized pursuant to a search warrant on May 11, when the defendant was arrested. It had been parked on a public street near the Walking Man Cafe in Waterbury, where the defendant was taken into custody. The jewelry box and cuff links were identified as belonging to the victim Kulesza.

The defendant testified at his trial. His testimony was markedly different from that of Chenkus and LeBlanc, who testified as to the defendant’s extensive and direct involvement in the crimes. In summary, the defendant testified that he did drive the car on the night of May 2, 1978, but that he thought he was transporting the other three to a drug transaction. He testified that he was directed to the victims’ home and was ordered to stay in the car as a lookout while the others exited from the car and approached the house. He believed that they were making the drug deal. He then heard yelling and entered the house by an open back door. Upon entering the house, he saw a man lying on the kitchen floor with blood coming from his mouth. He then met Calca, who ordered him into the house. He observed a second man with a cut on his head lying naked at the foot of the stairs.

The defendant testified further that he was told to accompany LeBlanc upstairs where the others were looking through rooms and trying to open a safe in one of the bedrooms. The defendant testified that he wanted to leave the house and went downstairs, but that Calca told him to go back upstairs.

The defendant denied having injured either Kulesza or Gilbert, or asking anyone else to harm them. In fact, he denied touching them. According to the defendant, his only purpose that night was to give LeBlanc, Chenkus and Calca a ride to a drug deal, and he had nothing to do with searching the house, robbing the safe, or stealing anything from the house. The defendant’s testimony was consistent with the elements of an affirmative defense to felony murder under General Statutes § 53a-54c.

I

The defendant first claims that the trial court restricted his cross-examination of Stanley Chenkus, in violation of his right of confrontation under the sixth amendment to the federal constitution. Having cross-examined Chenkus at length, the defendant attempted to question him concerning possible criminal activity, particularly burglaries, in which Chenkus may have participated with Joseph LeBlanc prior to May 2, 1978. The trial court sustained a general objection to this line of questioning on the ground that it was not probative of veracity. The defendant duly excepted.

A defendant’s right to cross-examine witnesses is not absolute and is subject to reasonable limitation. State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). Whether to permit cross-examination as to particular acts of misconduct to show a lack of veracity lies largely within the discretion of the trial court. Vogel v. Sylvester, 148 Conn. 666, 675-76, 174 A.2d 122 (1961). Chenkus had already been extensively cross-examined at the time of the inquiry concerning his prior criminal activity with LeBlanc. He had admitted having been arrested for prior criminal charges, including burglary. Had the evidence of prior misconduct been offered on the issue of veracity, it would not have been an abuse of the trial court’s discretion to sustain the objection.

The defendant contends, however, and the state concedes, that the court misunderstood the purpose for which the evidence was offered and consequently based its ruling on irrelevant grounds. It is sufficiently clear from the record that the purpose of the offer was not to attack directly Chenkus’ veracity, but rather to show a relationship between Chenkus and LeBlanc which involved their joint participation in burglaries prior to May 2,1978. The defendant in his brief contends that had he been allowed to pursue this line of inquiry, it “could have provided independent evidence that because at least two of the codefendants engaged in other burglaries together, possibly establishing a modus operandi, it is more likely than not they had planned the Gilbert home burglary together, to the exclusion of [the defendant].” He further asserts that “[a] history of previous burglaries could have been used to refute Chenkus’ testimony geared to show that [the defendant] was the instigator of the break-in,” and he claims that the ruling of the court denied him the opportunity “to plant the seed of his defense.”

The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge. This discretion comes into play, however, only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. State v. Castro, 196 Conn. 421, 424, 493 A.2d 223 (1985); State v. Gaynor, 182 Conn. 501, 508, 435 A.2d 1022 (1980). The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness. United States v. Vasilios, 598 F.2d 387, 389 (5th Cir. 1979); State v. Castro, supra, 425.

Cross-examination regarding motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979). We note, however, that the theory upon which the defendant offered evidence of Chenkus’ prior misconduct involved none of these factors. The purpose of the defendant’s questions was to elicit substantive evidence of a possible prior relationship involving criminal activity between Chenkus and LeBlanc that might bolster the defendant’s version of the incident of May 2, 1978.

It is clear from the record that the defendant was allowed wide latitude to cross-examine Chenkus. The defendant brought out, among other things, that Chenkus had made numerous inconsistent statements, that he was a chronic abuser of drugs and alcohol, that he had discussed the case with LeBlanc, and that he had received a very favorable plea bargain in exchange for his testimony. Under the circumstances, we cannot conclude that the defendant was denied his sixth amendment right of confrontation. Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. In this instance, the defendant has put a constitutional tag on a nonconstitutional claim. State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).

It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. Jones, 167 Conn. 228, 233, 355 A.2d 95 (1974); Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153 (1960). The defendant has not directed this court to any evidence in the record which would indicate the specific type of criminal activity in which Chenkus and LeBlanc may have participated together prior to May 2, 1978. We therefore cannot determine if there was in fact prior criminal activity involving Chenkus and LeBlanc, evidence of which might have been beneficial to the defendant. The only relevant reference contained in the record is a colloquy between the trial court and defense counsel in which defense counsel stated, “Your honor, based on the last trial where Mr. Chenkus at that time did take the Fifth Amendment in regard to similar questions, we have reason to believe that based on that that during this prior month there may have been other incidents perhaps of a similar nature involving these [Chenkus, Calca and LeBlanc] three parties.” (Emphasis added.) Since this line of inquiry may have been relevant to the defendant’s affirmative defense, the trial court should have allowed the defendant to pursue it. We find this error to be harmless, however, in light of the other evidence introduced at trial through which the defendant was able to “plant the seed of his defense.”

There was testimony that Chenkus and LeBlanc were friendly prior to May 2, 1978; that LeBlanc had an extensive felony record, including a conviction for robbery with violence and four convictions for breaking and entering; that Chenkus had been arrested several times, at least once for burglary; and that the defendant had no arrest record. There was also testimony that LeBlanc and Calca initiated the plans for a burglary on May 2,1978, that Chenkus agreed to participate in the burglary, and that Calca, in LeBlanc’s presence, made several telephone calls to secure a car before the defendant agreed to transport them. This was evidence from which the jury could have inferred that the defendant was not an “instigator” in the incident of May 2, 1978.

We cannot, under the circumstances of this case, say that the court’s ruling was probably harmful or clearly prejudicial to the defendant. State v. Shindell, 195 Conn. 128, 141, 486 A.2d 637 (1985).

II

The defendant next claims that the trial court abused its discretion by refusing to allow into evidence testimony of Francine LeBlanc, the former wife of Joseph LeBlanc, concerning a statement she made and Joseph LeBlanc’s reaction to that statement. The defendant claims that this evidence would have established an unintended admission by conduct, lending support to the defendant’s assertion of an affirmative defense to felony murder.

In an offer of proof outside the presence of the jury, Francine LeBlanc testified that she had said in the presence of Joseph LeBlanc, “I couldn’t let the baby grow up knowing that his father was a murderer or someone might tell him or would ridicule him that his father killed someone.” She also testified that “Joe didn’t answer to this and he just left.”

The defendant claims that Joseph LeBlanc’s silence in the face of his wife’s statement was an admission and reflected a consciousness of guilt. He argues that this silence, though communicative, was nonassertive conduct falling outside the hearsay rule. State v. McCarthy, 197 Conn. 166, 173, 496 A.2d 190 (1985). Even if the evidence offered was determined to be outside the hearsay rule, however, the conduct would have to be a reliable indicator of what the defendant claims it tended to communicate before such evidence could be admitted. “Although evidence of silence in the face of an accusation may be admissible under the ancient maxim that ‘silence gives consent’ the inference of assent may be made only when no other explanation is equally consistent with silence. State v. Bates, 140 Conn. 326, 328, 99 A.2d 133 (1953).” State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980).

Some of the considerations in determining the proper explanation for an actor’s silence are whether the circumstances show that the actor heard, understood, and comprehended the statement to which he did not respond, and whether the circumstances naturally-called for a reply from him. State v. Ferrone, 97 Conn. 258, 265-66, 116 A. 336 (1922). Here there was no showing of the circumstances under which Mrs. LeBlanc’s comment was made, what the emotional state of the parties was at the time, or even that Joseph LeBlanc heard it. Certainly there was no evidence that the circumstances naturally called for a reply from Joseph LeBlanc. The court therefore did not err in excluding Mrs. LeBlanc’s testimony.

Further, Joseph LeBlanc testified at length concerning his participation in the incident that resulted in the death of the victims. Since there was no doubt that LeBlanc was involved, any display of consciousness of guilt on his part would necessarily be so ambiguous in its meaning as to have little relevancy to the defendant’s affirmative defense. The defendant has thus failed to demonstrate that the court’s ruling was probably harmful to him. State v. Briggs, supra.

Ill

The defendant requested a jury instruction on larceny in the fourth degree; General Statutes § 53a-125; as a lesser included offense of felony murder. The trial court refused to charge the jury as to larceny in the fourth degree and the defendant duly excepted. The defendant contends that there was evidence from which the jury could reasonably have found that his part in this incident was other than as a participant in the felony murders or the underlying robbery. Further, he claims that the requested charge of larceny in the fourth degree met all the criteria of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), and that therefore the trial court erred in refusing to instruct the jury as requested. State v. Falby, 187 Conn. 6, 444 A.2d 213 (1982).

The defendant claims in his brief that the jury was entitled to believe certain portions of his testimony and certain portions of the testimony of other witnesses. From that testimony, the defendant argues, the jury could have found that on the night of May 2,1978, the defendant stole property of undetermined value belonging to the victims, but that no force or threat of force was used to accomplish the theft. Therefore, he claims, there was evidence from which the jury could have found him not guilty of felony murder and not guilty of robbery, but guilty of larceny in the fourth degree as a lesser included offense of felony murder. We disagree.

The evidence to which the defendant refers can be briefly summarized as follows. There was testimony that a jewelry box and cuff links of undetermined value which belonged to one of the victims were found in the Ford station wagon that the defendant was using on May 11, 1978, the night he was arrested. There was also testimony that while the four men were in the house, the defendant took a bank envelope or sack and handed it to Calca, and there was no evidence of the value of its contents. The defendant testified that when he went into the Gilbert-Kulesza home, the two victims were already unconscious and he did not in any way participate in the harm inflicted on them. Although the defendant denied in his testimony that he took anything from the house, he maintains that the jury was entitled to find that he did, in fact, commit a larceny of property of undetermined value, but that the larceny was accomplished without the use or threatened use of force.

Under the circumstances as alleged by the defendant, he would be entitled to be found not guilty of felony murder and not guilty of robbery, but he would not be entitled to a jury instruction on larceny in the fourth degree. The defendant’s request was for a charge concerning his culpability for a separate and distinct crime, that is, a charge as to an alternate offense, not a lesser included offense.

The defendant does not dispute that these two felony murders occurred. Rather, his claim is that he had no part in the murders or in the robbery, that is the larceny by force, which was the predicate felony. Any larceny, other than a larceny accomplished by the use of the force resulting in the deaths of the victims, would not, under the circumstances of this case, be a lesser included offense of felony murder, but simply an unrelated larceny. A larceny not related to the robbery, even though committed the same night, is a separate crime and not a lesser included offense of these felony murders. The defendant was not entitled to a jury instruction on a separate uncharged crime. See State v. MacFarlane, 188 Conn. 542, 548-49, 450 A.2d 374 (1982).

IV

The defendant next claims that the trial court erroneously admitted into evidence a conversation he had with James Fortin, a correction officer at the Bridgeport correctional center. The defendant contends that the conversation with Fortin was custodial interrogation, and that prior to that conversation he was not given timely Miranda warnings and he did not waive his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant also claims that the statements he made during his conversation with Fortin were obtained in violation of his sixth amendment right to counsel.

The defendant’s claims have validity only if he was in fact subjected to custodial interrogation. Rhode Island v. Innis, 446 U.S. 291, 298, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); State v. Stankowski, 184 Conn. 121, 136-38, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). Further, the defendant has the initial burden of showing that his conversation with Fortin was custodial interrogation. United States v. Charles, 738 F.2d 686, 695 n.11 (5th Cir. 1984); United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir. 1977).

The state concedes that, at the time of his conversation with Fortin, the defendant was in custody for the purposes of Miranda, and that Fortin was a law enforcement officer. The state maintains, however, that the defendant was not subjected to interrogation. We agree.

From the evidence adduced at a suppression hearing outside the presence of the jury, the trial court could reasonably have found the following facts: After his arrest on these two counts of felony murder, the defendant was confined in lieu of bond at the Bridgeport correctional center. While in his cell, he had a conversation with James Fortin, a uniformed correction officer. This conversation took place at the beginning of June, 1978, shortly after the defendant had been brought into the correctional center. There was another person approximately four feet away when this conversation took place. At the time, Fortin had been a correction officer for approximately a year and two or three months. Fortin talked to all the inmates at the correctional center.

Fortin and the defendant had attended the same high school in Waterbury. Fortin knew the defendant; they had played football together. Fortin started a general conversation with the defendant. They talked about “high school and playing football and things” and the defendant was telling him “different things” when the conversation “turned over” to why the defendant was arrested. During the conversation, the defendant made the inculpatory statements in question.

At the time of the conversation, Fortin was aware that the defendant was confined in lieu of bond on two counts of felony murder. Fortin took no notes of the conversation. Sometime later in the month of June, Fortin talked to his uncle, Thomas Gugliardi, at a graduation or christening party. Gugliardi was a state policeman assigned to the Litchfield barracks and was an investigating officer on the Gilbert-Kulesza murders. At the party, Fortin told his uncle about his conversation with the defendant and Gugliardi asked if he would talk to a state police detective. Fortin later talked to Detective Paul Reed. It was the first time Fortin had ever reported to the state police or other authorities what a prisoner had said during a conversation. At the time of his conversation with the defendant, Fortin did not know his uncle was an investigating officer in the case.

Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way. Miranda v. Arizona, supra, 444. Before one suspected of the commission of a crime is entitled to the warnings constitutionally required by Miranda, two conditions are required: the suspect must be in the custody of law enforcement officials; Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); Beckwith v. United States, 425 U.S. 341, 344-48, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976); and the suspect must be subjected to interrogation. State v. Stankowski, supra, 136.

The state concedes that the defendant was in the custody of law enforcement officials at the time of his conversation with Fortin. The decisive question is whether he was the subject of interrogation.

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. ... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Emphasis in original.) Rhode Island v. Innis, supra, 301-302; State v. Stankowski, supra, 136-37.

“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Miranda v. Arizona, supra, 478. “ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” Rhode Island v. Innis, supra, 300. Voluntary statements of any kind are not barred by the fifth amendment. Miranda v. Arizona, supra, 478.

It is clear from the record that the statements in question were not the result of conduct designed to elicit incriminating statements. They were volunteered by the defendant during a general conversation between him and Fortin, wherein the defendant spoke freely about the offenses with which he was charged. Although there is no doubt that the defendant was in custody, his statements were not in response to interrogation. Leuschner v. State, 41 Md. App. 423, 397 A.2d 622, cert. denied, 444 U.S. 933, 100 S. Ct. 279, 62 L. Ed. 2d 662 (1979).

Because the right to counsel applies only when the government deliberately elicits incriminating information, the defendant’s sixth amendment right to counsel was not violated. United States v. Henry, 447 U.S. 264, 270, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980); Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964).

The trial court therefore did not err in refusing to suppress the defendant’s statements.

V

Finally the defendant argues that he was denied the effective assistance of counsel. This argument is based on a claim that defense counsel at trial failed to subpoena readily available hospital and police records which would have cast doubt on the rebuttal testimony of Joseph LeBlanc. While the defendant concedes that “a claim of ineffective assistance of counsel is usually more appropriately a subject of a writ of habeas corpus or a petition for a new trial,” he claims that the appellate record in this case supports a finding of ineffective assistance of counsel. We disagree.

An ineffective assistance of counsel claim requires the defendant to show “that trial counsel’s performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and that trial counsel’s lack of competence contributed to the defendant’s conviction.” State v. Rivera, 196 Conn. 567, 570, 494 A.2d 570 (1985).

On the appellate record before us, we cannot determine that the defendant has met either requirement. We therefore cannot conclude that he was denied effective assistance of counsel.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-54c. felony murder. 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, sexual assault in the first degree with a firearm, 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, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       See footnote 1, supra.

       In 1978, when the crimes with which the defendant was charged occurred, General Statutes § 53a-125 provided as follows: “Sec. 53a-125. LARCENY IN THE FOURTH DEGREE: CLASS C MISDEMEANOR, (a) A person is guilty of larceny in the fourth degree when the value of the property or services is fifty dollars or less.
      “(b) Larceny in the fourth degree is a class C misdemeanor.”
      Under General Statutes § 53a-121 (a) (3), “[w]hen the value of property or services cannot be satisfactorily ascertained pursuant to the standards set forth in this section, its value shall be deemed to be an amount less than fifty dollars.”

       At the suppression hearing Fortin testified as follows: “We were talking about high school and playing football and things. Turned over to why he was arrested. And he told me he was up to the house in Woodbury prior to that night up at a party and they went back that night to commit a burglary. And things got carried away and they ended up killing them with a butter knife. John said he was covered with blood on his clothes and his sneakers and he knew it was just a matter of time before they arrested him, but the cops couldn’t prove that he did it.”
      At trial his testimony was: “We were talking about going to high school together and playing on the same football team and different conversation concerning that. And he started talking about why he was arrested. And he told me he was up to the Woodbury house prior to that night for a party and they came back that night for a burglary and things got a little bit out of hand and carried away, and they ended up killing them with a butter knife. John said he was covered with blood, his clothes and his sneakers and that he knew he would be arrested, eventually, but the cops couldn’t prove that he did it.”