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STATE OF CONNECTICUT v. JERMAINE T. SCOTT

(AC 36359)

Lavine, Alvord and Bear, Js.

Argued April 15—officially released July 28, 2015

(Appeal from Superior Court, judicial district of New

Haven, B. Fischer, J.)

Janice Wolf, senior assistant public defender, for the

appellant (defendant).

Brett R. Aiello, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington,

state’s attorney, and Brian K. Sibley, Sr., senior assistant state’s attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Jermaine T. Scott,

appeals from the judgment of conviction,rendered after

a trial to the court,1 of criminal possession of a firearm

in violation of General Statutes § 53a-217 (a).2 On

appeal, the defendant (1) claims that the court improperly determined that he validly waived his right to a

jury trial and (2) requests this court to exercise its

supervisory authority to provide a more uniform procedure for conducting waivers of the right to a jury trial.

We affirm the judgment of the trial court.

The following facts are relevant to the resolution of

the defendant’s claim. On the evening of June 19, 2010,

Marquise Baskin was shot and killed in New Haven.

The defendant was charged with Baskin’s murder and

criminal possession of a firearm. On September 10,

2013, the defendant appeared with counsel before the

court to conduct jury selection. The following colloquy ensued:

‘‘The Court: Okay. All right. Good morning to everybody. And this is Mr. Scott here. . . . Is it my understanding, Attorney Hopkins, that your client is opting

to go courtside on the Second Count which is a claim

that he possessed a firearm in violation, and he had

been a convicted felon, in violation of [General Statutes

§ 53a-217 (a)]?

‘‘[Defense Counsel]: That’s correct, your Honor.

‘‘The Court: All right. I’m—I want to do a canvass of

Mr. Scott now. Are you prepared, Attorney Hopkins,

for me to do that, or you want a minute?

‘‘[Defense Counsel]: Oh, yes. Could I just have a

moment.

‘‘The Court: Sure.

‘‘[Defense Counsel]: Yes. I think he’s prepared for the

canvass, your Honor.

‘‘The Court: Sure. Mr. Scott, if you could stand up

and, Counsel, if you could stand up also. All right. Mr.

Scott, I’m going to ask you a few questions concerning

what I anticipate to be your waiver of the right to have

the jury decide the second count, which is possession

of a firearm by a convicted felon. Is it my understanding

that you want the Court, you want the judge to make

a decision of guilty or not guilty on that count?

‘‘[The Defendant]: Yes. Yes, sir.

‘‘The Court: All right. Your attorney is standing next

to you. If you don’t understand my question or are

confused or want his advice you could just look to him

. . . before you answer my question. Okay.

‘‘[The Defendant]: Yes, sir.

‘‘The Court: The purpose of my questions is not to
trick you or trip you up, just to make sure that you

understand the waiver of a jury right. So on the First

Count, which is murder, the jury would make a decision

on whether the State of Connecticut has met its burden

of proving each and every element beyond a reasonable

doubt. That would be a jury’s decision on guilt or nonguilt, you understand that; correct?

‘‘[The Defendant]: Yes, sir.

‘‘The Court: But on the Second Count about a possession of a firearm you’re indicating to this Court that

you want the judge, you want me to make a decision

on whether the State of Connecticut has proven each

and every element necessary in that count beyond a

reasonable doubt. Is that correct?

‘‘[The Defendant]: Yes, sir.

‘‘The Court: All right. And you had enough time to

talk to Attorney Hopkins about that decision?

‘‘[The Defendant]: Yes, sir.

‘‘The Court: And you’re satisfied with his advice and

counsel on this decision?

‘‘[The Defendant]: Yes, sir.

‘‘The Court: All right. But you’re—you are waiving

your right to have a jury decide the Second Count,

and this is your decision after consulting with Attorney

Hopkins that you’re waiving your right to have the jury

decide that Second Count and you want the Court to

decide that Second Count, do you understand that?

‘‘[The Defendant]: Yes, sir. Yes.

‘‘The Court: All right. And you understand my—my

verdict after hearing the evidence could be either consistent with the jury’s verdict or inconsistent, in other

words, one count might be guilty or not guilty and my

count could be guilty or not guilty. Do you understand that?

‘‘[The Defendant]: Yep. Yes, sir.

‘‘The Court: All right. Do you have any questions

about what I asked you?

‘‘[The Defendant]: No, sir.

‘‘The Court: All right. And nobody’s forcing you to

waive this right, this is your free act and deed waiving

your right to have a jury decide the Second Count; is

that correct?

‘‘[The Defendant]: Yes, sir.

‘‘The Court: Okay. Attorney Hopkins, did you want

to canvass your client at all?

‘‘[Defense Counsel]: No, your Honor.’’

Trial of the matter commenced on October 15, 2013.

On October 18, 2013, the jury returned its verdict, find-
ing the defendant not guilty of murder. Thereafter, the

trial court found the defendant guilty on the count of

criminal possession of a firearm. The court first found

that the state had proven that the defendant was a

convicted felon. The court then credited the statement

of the witness to the shooting, who told police that on

the evening of June 19, 2010, she saw the defendant,

her nephew, with a gun and witnessed him fire six

shots. The court then sentenced the defendant to five

years incarceration. This appeal followed.

I

The defendant claims on appeal that the court

improperly determined that his waiver of the right to

a jury trial was knowing and intelligent. Specifically,

the defendant contends that the court’s canvass was

inadequate in that ‘‘it failed to (1) tell how many jurors

[the defendant] would have had versus just one judge,

(2) indicate that the jury would have to be unanimous,

and (3) evaluate [the defendant’s] educational, work,

and jury trial experience.’’ The defendant raises this

claim for the first time on appeal and requests review

pursuant to State v. Golding, 213 Conn. 233, 239–40,

567 A.2d 823 (1989).3 We review the defendant’s claim

because the record is adequate for review and his claim

is of constitutional magnitude.4 State v. Tocco, 120 Conn.

App. 768, 776, 993 A.2d 989, cert. denied, 297 Conn. 917,

996 A.2d 279 (2010). We thus turn to Golding’s third

prong to determine whether ‘‘the alleged constitutional

violation clearly exists and clearly deprived the defendant of a fair trial . . . .’’ State v. Golding, supra, 240.5

We first set forth our standard of review and applicable legal principles. ‘‘The right to a jury trial in a criminal

case is among those constitutional rights which are

related to the procedure for the determination of guilt

or innocence. The standard for an effective waiver of

such a right is that it must be knowing and intelligent,

as well as voluntary. . . . Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.

Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the

definition of a valid waiver of a constitutional right as

the intentional relinquishment or abandonment of a

known right. . . . This strict standard precludes a

court from presuming a waiver of the right to a trial

by jury from a silent record. . . . In determining

whether this strict standard has been met, a court must

inquire into the totality of the circumstances of each

case. . . . When such a claim is first raised on appeal,

our focus is on compliance with these constitutional

requirements rather than on observance of analogous

proceduralrules prescribed by statute or by the Practice

Book. . . . Our task, therefore, is to determine

whether the totality of the record furnishes sufficient

assurance of a constitutionally valid waiver of the right

to a jury trial. . . . Our inquiry is dependent upon the

particular facts and circumstances surrounding [each]
case, including the background, experience, and conduct of the accused. . . . In examining the record,

moreover, we will indulge every reasonable presumption against waiver of fundamental constitutional rights

and . . . [will] not presume acquiescence in the loss

of fundamental rights. . . . In addition, a waiver of a

fundamental constitutional right is not to be presumed

from a silent record.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Gore,

288 Conn. 770, 775–77, 955 A.2d 1 (2008).

In Gore, our Supreme Court concluded that the right

to a jury trial must be personally and affirmatively

waived by the defendant in order to render such waiver

valid.Id., 783. The court additionally exercised its supervisory authority to require, in the absence of a written

waiver, the trial court to ‘‘canvass the defendant briefly

to ensure that his or her personal waiver of a jury trial

is made knowingly, intelligently and voluntarily.’’ Id.,

787. The court stated that ‘‘[t]his canvass need not be

overly detailed or extensive, but it should be sufficient

to allow the trial court to obtain assurance that the

defendant: (1) understands that he or she personally

has the right to a jury trial; (2) understands that he or

she possesses the authority to give up or waive the

right to a jury trial; and (3) voluntarily has chosen to

waive the right to a jury trial and to elect a court trial.’’

(Footnote omitted.) Id., 788–89. The court further

explained that ‘‘[i]t is not necessary that the canvass

required for a jury trial waiver be as extensive as the

canvass constitutionally required for a valid guilty plea’’

because in pleading guilty, a defendant forfeits a number of constitutional rights. Id., 789 n.18.

In the present case, the defendant personally and

affirmatively expressed on the record his desire to

waive his right to a jury trial. The threshold Gore

requirement having been satisfied, we proceed to a

‘‘totality of the circumstances analysis to determine

whether the defendant’s personal waiver of a jury trial

was made knowingly, intelligently and voluntarily.’’ Id.,

782 n.12.

The defendant claims that the trial court’s canvass

was inadequate because the court failed to advise him

that ‘‘in order to convict him, a jury of twelve persons

must make a unanimous decision that he is guilty of

the crime alleged’’ and failed to ‘‘elicit any information

from [him] regarding his educational background or

any previous experience he had with a jury trial.’’6 Our

review of the totality of the record in this case leads

us to conclude that the defendant validly waived his

right to a jury trial.

At the time of his waiver, the defendant was represented by counsel and he personally indicated that he

had conferred with his counsel concerning the waiver.

As this court previously has recognized, ‘‘[t]he fact that

the defendant was represented by counsel and that he
conferred with counsel concerning the right to waive

his right to a jury trial supports a conclusion that his

waiver was constitutionally sound.’’ State v. Tocco,

supra, 120 Conn. App. 780; see also State v. Smith, 100

Conn. App. 313, 324, 917 A.2d 1017, cert. denied, 282

Conn. 920, 925 A.2d 1102 (2007). At the beginning of

the canvass, the defendant was instructed by the court

to look to his counsel before answering if he did not

understand any of the court’s questions. The defendant

was further informed that the purpose of the court’s

questions was to ensure that he understood the waiver

of the right to a jury trial. During the court’s canvass,

the defendant stated that he had sufficient time to talk

with his attorney about the decision and further confirmed that he was satisfied with his attorney’s advice

and counsel. At the end of the canvass, the court

inquired as to whether defense counsel wanted to canvass the defendant, and defense counsel declined to

add to the canvass. See State v. Jeremy D., 149 Conn.

App. 583, 594, 90 A.3d 979 (noting that defense counsel

had nothing further to add to the canvass), cert. denied,

312 Conn. 913, 93 A.3d 596 (2014).

Other responses during the canvass demonstrated

that the defendant understood his rights. See State v.

Woods, 297 Conn. 569, 586, 4 A.3d 236 (2010). The court

inquired whether the defendant wanted the court to

make a decision of guilt on the second count, and the

court explained to the defendant that the jury would

decide the first count.7 The defendant confirmed multiple times that he understood. The court further clarified

that the court’s finding might or might not be consistent

with the jury’s verdict, in that he could be found guilty

on one count and not guilty on the other. The court

asked the defendant whether he had any questions, to

which he responded no. The court inquired as to

whether the defendant’s waiver of his right to a jury

trial was his free act, to which the defendant responded

yes. The record contains no indication of any hesitancy

or indecision on the part of the defendant, as each of

his answers consisted of a clear ‘‘yes, sir,’’ or ‘‘no, sir.’’

See State v. Jeremy D., supra, 149 Conn. App. 592 (‘‘the

transcript of the colloquy . . . reflects that the defendant responded to the court’s inquiries in an intelligible

and well mannered fashion’’); State v. Tocco, supra,

120 Conn. App. 781 (‘‘[t]he defendant’s immediate and

unequivocal replies to the court’s inquiries reflected his

strong desire to proceed to trial before the court, not

a jury’’). The record reveals that the defendant, in

responding to the court’s inquiries, unambiguously confirmed that he wanted to waive his right to have a jury

decide the second count.

We must also consider the background, conduct, and

experience of the defendant to determine whetherthere

has been an intelligent waiver of the constitutional right

to a jury trial. See State v. Woods, supra, 297 Conn.

585. The defendant argues in the present case that his
lengthy history of incarceration makes it unlikely that

he had a significant work history and that ‘‘based on

the last ten years of [the defendant’s] judicial involvement, it does not appear that he had been to trial

before.’’ In support of the defendant’s contention that

the court failed to inquire sufficiently into his background, he cites cases in which the trial court discussed

the defendant’s level of education and life experience.

See State v. Altayeb, 126 Conn. App. 383, 395, 11 A.3d

1122, cert. denied, 300 Conn. 927, 15 A.3d 628 (2011);

State v. Tocco, supra, 120 Conn. App. 780. When there

is ‘‘no evidence to suggest that the defendant was not

of ordinary intelligence or educational background

. . . or that he lacked meaningful life experience’’;

(citation omitted; internal quotation marks omitted)

State v. Rizzo, 303 Conn. 71, 92, 31 A.3d 1094 (2011),

cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d

64 (2012); our courts have rejected challenges to the

validity of a jury waiver.

In the present case, the defendant was thirty-three

years old at the time of the canvass. Despite his argument that ‘‘it does not appear that he had been to trial

before,’’ the defendant was a convicted felon and had

been sentenced on at least two prior occasions. Thus,

he necessarily had some familiarity with judicial procedures. See State v. Smith, supra, 100 Conn. App. 324

(considering, in determining that the defendant validly

waived his right to a jury trial, that he ‘‘had some familiarity with the court system, having a lengthy criminal

history that included robberies’’).

The court’s failure to include in its canvass the number of jurors to which the defendant would be entitled

and the requirement that the jury’s verdict be unanimous does not compel the conclusion that the defendant’s waiver was constitutionally deficient. Our courts

have declined to require a formulaic canvass and ‘‘have

rejected claims that an otherwise valid waiver of the

right to a jury is undermined by the trial court’s failure

to include a specific item of information in its canvass.’’

State v. Rizzo, supra, 303 Conn. 103.

We conclude that the totality of the circumstances

in the present case demonstrates that the defendant

knowingly, intelligently, and voluntarily waived his right

to a jury trial. Accordingly, his claim fails.

II

The defendant next asks this court to exercise its

supervisory authority to require a more uniform procedure for conducting the canvass on the waiver of the

right to a jury trial, and he provides a list of factors

that he proposes be included in the trial court’s canvass.

Specifically, he argues that ‘‘[t]he trial courts are inconsistent in the depth of their canvass of the defendant

even on the most basic points of how many jurors,

the unanimity requirement, and how the judge’s role
changes for a court trial. Just as specific rules exist

regarding a canvass and acceptance of a plea, so should

specific rules exist regarding a canvass and acceptance

of a jury trial waiver.’’ In support of his argument, the

defendant references procedures established in other

states. We decline the defendant’s request.

‘‘Supervisory authority is an extraordinary remedy

that should be used sparingly. . . . Although [a]ppellate courts possess an inherent supervisory authority

over the administration of justice . . . [that] authority

. . . is not a form of free-floating justice, untethered

to legal principle. . . . Our supervisory powers are not

a last bastion of hope for every untenable appeal. They

are an extraordinary remedy to be invoked only when

circumstances are such that the issue at hand, while

not rising to the level of a constitutional violation, is

nonetheless of utmost seriousness, not only for the

integrity of a particular trial but also for the perceived

fairness of the judicial system as a whole. . . . Constitutional, statutory and procedural limitations are generally adequate to protect the rights of the defendant and

the integrity of the judicial system. Our supervisory

powers are invoked only in the rare circumstance [in

which] these traditional protections are inadequate to

ensure the fair and just administration of the courts.’’

(Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Edwards, 314 Conn. 465,

498, 102 A.3d 52 (2014).

We conclude that traditional protections are adequate

to safeguard the rights of a defendant who waives his

right to a jury trial and the integrity of the judicial

system; see State v. Jose V., 157Conn.App. 393, 408–409,

A.3d (2015); and we therefore decline to exercise our supervisory authority.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In a trial to a jury, the defendant was found not guilty of murder in

violation of General Statutes § 53a-54a (a).

2 General Statutes § 53a-217 (a) provides in relevant part: ‘‘A person is

guilty of criminal possession of a firearm . . . when such person possesses

a firearm . . . and (1) has been convicted of a felony committed prior to,

on or after October 1, 2013 . . . .’’

3 Under State v. Golding, supra, 213 Conn. 239–40, ‘‘a defendant can prevail

on a claim of constitutional error not preserved at trial only if all of the

following conditions are met: (1) the record is adequate to review the alleged

claim of error; (2) the claim is of constitutional magnitude alleging the

violation of a fundamental right; (3) the alleged constitutional violation

clearly exists and clearly deprived the defendant of a fair trial; and (4)

if subject to harmless error analysis, the state has failed to demonstrate

harmlessness of the alleged constitutional violation beyond a reasonable

doubt.’’ (Emphasis in original; footnote omitted.)

4 The defendant asserts his constitutional right to a jury trial under both

the United States and Connecticut constitutions. ‘‘[T]he defendant has not

provided this court with a separate analysis of his rights under the Connecticut constitution or asserted that the Connecticut constitution affords him

greater protections, for purposes of his claim, than its federal counterpart.

Accordingly, for purposes of this appeal we treat the jury trial rights arising

from the state and federal constitutions as coextensive.’’ (Internal quotation

marks omitted.) State v. Tocco, 120 Conn. App. 768, 776 n.3, 993 A.2d 989,

cert. denied, 297 Conn. 917, 996 A.2d 279 (2010).
5 The defendant alternatively requests that this courtreverse his conviction

pursuant to the plain error doctrine, which is codified at Practice Book

§ 60-5. Practice Book § 60-5 provides in relevant part: ‘‘The court shall not

be bound to consider a claim unless it was distinctly raised at the trial or

arose subsequent to the trial. The court may in the interests of justice notice

plain error not brought to the attention of the trial court. . . .’’ Because we

ultimately determine that the defendant’s waiver of his right to a jury trial

was valid, ‘‘it necessarily follows that the trial court did not commit plain

error.’’ State v. Rizzo, 303 Conn. 71, 89 n.9, 31 A.3d 1094 (2011), cert. denied,

U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).

6 The defendant further argues that because there was only one witness

to the shooting, ‘‘a complete discussion by the trial court with [the defendant]

was required to ascertain whether he understood that twelve different people

from different backgrounds and experiences would need to believe [the

witness’] version of events she told the police, in order to convict him of

count two.’’ As the state points out, however, the defendant offers no authority suggesting that the quality or quantity of the evidence expected to be

presented determines the adequacy of the canvass. Accordingly, the defendant’s argument proves unavailing.

7 The court additionally clarified that the jury would be deciding whether

the state had ‘‘met its burden of proving each and every element beyond a

reasonable doubt’’ on the first count, and that the judge would be deciding

the second count according to the same standard.