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STATE OF CONNECTICUT v. JEREMY D.*

(AC 35058)

DiPentima, C. J., and Lavine and Dupont, Js.

Argued February 4—officially released April 22, 2014

(Appeal from Superior Court, judicial district of

Waterbury, Crawford, J.)

Glenn W. Falk, assigned counsel, with whom, on the

brief, was Deborah M. Frankel, legal fellow, for the

appellant (defendant).

Bruce R. Lockwood, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Jason Germain, senior assistant state’s

attorney, for the appellee (state).
Opinion

DUPONT, J. The defendant, Jeremy D., appeals from

the judgment of conviction, rendered after a trial to the

court, of one count of sexual assault in the fourth degree

in violation of General Statutes § 53a-73a (a) (1) (A),1

one count of risk of injury to a child in violation of

General Statutes § 53-21 (a) (1),2 and one count of risk

of injury to a child in violation of § 53-21 (a) (2).3 On

appeal, the defendant claims that the court failed to

ensure that he knowingly, intelligently and voluntarily

waived his right to a jury trial. Specifically, the defendant argues that, during its canvass of him, the court

misstated relevant legal principles and did not take

into account his inexperience with the criminal justice

system. He therefore claims that the court improperly

refused to allow him to withdraw his waiver of a trial

by jury when he informed the court that he was confused. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of

this appeal. The defendant was charged in a substitute

information on March 8, 2012, with one count of sexual

assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the

third degree in violation of General Statutes § 53a-72a

(a) (B) (2), one count of sexual assault in the fourth

degree in violation of § 53a-73a (a) (1) (A), one count

of risk of injury to a child in violation of § 53-21 (a) (2),

and one count of risk of injury to a child in violation

of § 53-21 (a)(1). On May 5, 2010, the defendant pleaded

not guilty and elected a trial by a jury of six. On March

12, 2012, the defendant appeared with counsel before

the court to begin jury selection. Before jury selection

began, however, the defendant alerted the court, Damiani, J., that he had decided to waive his right to a trial

by jury and to proceed, instead, with a court trial. The

following colloquy then took place:

‘‘The Court: Mr. [D.], how old are you?

‘‘The Defendant: Thirty-seven.

‘‘The Court: And how far have you gone in school?

‘‘The Defendant: Eleventh grade.

‘‘The Court: You take any drugs, alcohol, or medication today?

‘‘The Defendant: No, sir.

‘‘The Court: Now, you’re here to start trial regarding

a sexual assault case, correct?

‘‘The Defendant: Yes, sir.

‘‘The Court: And you have your attorney with you,

[Howard] Lawrence. Right now, you elected a trial by

a jury of six. In a jury trial, you and your lawyer would

have a right or a say as to who’s going to be the trier

of fact in your case. Potential jurors come out, they sit
in the witness box, state’s attorney asks questions, your

lawyer asks questions. The juror then leaves and goes

outside the courtroom. You then confer with your lawyer and say I don’t like that person, I like—whatever.

You understand that?

‘‘The Defendant: Yes, sir.

‘‘The Court: Court trial, whatever judge it is, it is. You

understand that?

‘‘The Defendant: Yes, sir.

‘‘The Court: In a jury trial, the state’s got to convince

all six jurors of your guilt beyond a reasonable doubt.

Your lawyer only has to create a reasonable doubt in

one juror’s mind to get a hung jury. You understand

that? A mistrial.

‘‘The Defendant: Yes, sir.

‘‘The Court: In a court trial there’s only one person.

The state’s got to convince that one person of your guilt

beyond a reasonable doubt, and your lawyer’s got to

create a reasonable doubt in that one person’s mind.

You understand that?

‘‘The Defendant: Yes, sir.

‘‘The Court: Now, you’re charged with [a] five count

information. Sexual assault in the first degree, sexual

assault in the third degree, sexual assault in the fourth

degree, risk of injury under subsection (1) and risk of

injury subsection (2). You’re exposed to a maximum

penalty of seventy years in jail, and/or a $60,000 fine,

of which, if the sentence—you’re convicted and the

sentences were consecutive, fifteen years cannot be

suspended or reduced by the court, you understand

that?

‘‘The Defendant: Yes, sir.

‘‘The Court: Do you understand all that?

‘‘The Defendant: Yes, sir.

‘‘The Court: Do you wish to be tried by a judge or

by a jury?

‘‘The Defendant: A judge.

‘‘The Court: And that’s your free [act] and deed?

‘‘The Defendant: Yes, sir.

‘‘The Court: This choice is irrevocable, which means

if you change your mind two seconds from now, it’s

too late. Do you understand that?

‘‘The Defendant: Yes, sir.

‘‘The Court: You’ve talked to your lawyer about this?

‘‘The Defendant: Yes, sir.

‘‘The Court: He’s explained everything in great detail?

‘‘The Defendant: Yes, sir.
‘‘The Court: And you’re satisfied with his representation?

‘‘The Defendant: Yes.

‘‘The Court: And you want to make an election of your

own free will to go from a jury to a court trial, correct?

‘‘The Defendant: Yes, sir.

‘‘The Court: Anything further [defense counsel] on

this?

‘‘[Defense Counsel]: No, that covers it, Your Honor.

. . .

‘‘The Court: Record willreflect a knowing, intelligent,

voluntary waiver of jury to court; matter is set for a

court trial.’’

On March 19, 2012, the defendant moved to vacate

his election to trial by the court in favor of a jury trial.

The defendant argued that the court confused him

because, during its canvass of him, the court had stated:

‘‘Your lawyer only has to create a reasonable doubt in

one juror’s mind to get a hung jury.’’ (Emphasis added.)

The defendant claimed that the court’s use of the word

‘‘create’’ led him to mistakenly believe that he had a

burden of production and persuasion and that, because

he ‘‘is [a] layman, he was confused by the canvass.’’ In

denying the defendant’s motion, Judge Damiani stated:

‘‘[Defense counsel], you want to split hairs, when you

argue to a jury, and I’ve done it thousands of times, the

state has the burden of proof beyond a reasonable doubt

. . . . We know you have no burden of proof, but they

have to prove beyond a reasonable doubt . . . . [Your

motion] is denied. You have an exception.’’

The defendant then proceeded to trial before the

court, Crawford, J., and was convicted of sexual assault

in the fourth degree in violation of § 53a-73a (a) (1) (A),

risk of injury to a child in violation of § 53-21 (a) (2),

and risk of injury to a child in violation of § 53-21 (a)

(1). On June 1, 2012, the court sentenced the defendant

to a total effective term of fifteen years incarceration,

suspended after five years, with fifteen years probation.

This appeal followed.

On appeal, the defendant claims that the court

improperly determined that the waiver of his right to

a jury trial was done knowingly, intelligently and voluntarily.4 Specifically, the defendant asserts that the court

improperly refused to permit him to withdraw his

waiver when he expressed his confusion concerning

the court’s alleged misrepresentation that the defendant

had to ‘‘create’’ a reasonable doubt for the jury. We

disagree.

Before addressing the merits of the defendant’s claim,

we begin by setting forth the applicable standard of

review and the legal principles governing our analysis.

‘‘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.

. . . [W]e 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 procedural rules 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 [such as the right to a trial by jury] is not

to be presumed from a silent record. . . . [Rather] in

determining whether a court has properly accepted a

waiver of the right [to a jury trial], there must be some

affirmative indication from the accused personally, on

the record, that he or she has decided to waive the

fundamental right to a jury trial [as] the defendant’s

silence is too ambiguous to permit the inference that he

or she has waived such a fundamental right.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Tocco, 120 Conn. App. 768, 777–78, 993 A.2d 989, cert.

denied, 297 Conn. 917, 996 A.2d 279 (2010). Importantly,

‘‘[a] defendant’s personal assertion of a waiver of the

right to a jury trial is not conclusive evidence that the

waiver was made knowingly, intelligently and voluntarily, but its absence is a fatal blow to the validity of a

waiver.’’ State v. Gore, 288 Conn. 770, 782, 955 A.2d

1 (2008).

‘‘In addition to determining that a defendant who

seeks to [waive a constitutional right] is competent, a

trial court must satisfy itself that the waiver . . . is

knowing and voluntary. . . . [I]n this sense, there is a

heightened standard for [the waiver of a constitutional

right], butit is not a heightened standard of competence.

. . . Moreover, it is the same standard that is applicable

to all criminal defendants who have been found competent to stand trial. Under this standard, [t]he determination of whether there has been an intelligent waiver of

[a constitutional right] must depend, in each case, upon
the particular facts and circumstances surrounding that

case, including the background, experience, and conduct of the accused.’’ (Internal quotation marks omitted.) State v. Tocco, supra, 120 Conn. App. 779.

We first note that the defendant addressed the court

personally and stated on the record that he wanted a

trial before the court in lieu of a trial by jury. The

condition precedent for a constitutionally valid waiver

was therefore satisfied. See id., 778–79. We must now

examine the totality of the circumstances, which

include the defendant’s competence and background

as well as the court’s statements to the defendant, to

determine whether the defendant’s waiver was knowingly, intelligently and voluntarily made.

Although the defendant’s competence is not otherwise challenged on appeal, the defendant does argue

that his lack of familiarity with the criminal process as

a ‘‘layman’’ combined with the court’s alleged misuse

of the word ‘‘create’’—an argument we will address—

confused him. It is thus important to note at the outset

that a lack of understanding or mere confusion concerning criminal proceedings does not amount to mental

incompetence in determining whether a defendant was

sufficiently competent to validly waive a constitutional

right to a trial by jury. See State v. Paulino, 127 Conn.

App. 51, 66, 12 A.3d 628 (2011) (‘‘although the defendant

did admit that he often was confused by court procedures, a lack of legal expertise is not indicative of

incompetence’’).

As the defendant’s competence is not otherwise at

issue, we now consider his background, conduct and

experience. For that information, we look to the trial

court transcripts and record as well as the court’s canvass of the defendant concerning his waiver. With

respect to the court’s canvass of the defendant, the

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

and well mannered fashion. See State v. Tocco, supra,

120 Conn. App. 780. During the court’s colloquy, the

defendant represented that he was not under the influence of alcohol, drugs or medications, that he had an

eleventh grade education, that he carefully had considered the issue after discussions with his attorney, and

that he was confident in his decision to proceed with

a court trial. When questioned on the specifics of the

waiver, the defendant reiterated multiple times that he

understood the irrevocability of his decision and that

he had decided voluntarily to instead elect a court trial.

During his trial testimony, the defendant similarly

responded to questions in a polite and coherent manner.

There is nothing in the record to indicate that the defendant was not a man of ordinary intelligence or that he

lacked meaningful life experience. See 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).
Importantly, the record reflects that the defendant

was represented by counsel, Lawrence, throughout the

course of the trial. There is also nothing in the record

to indicate that the defendant had problems communicating effectively with Lawrence before, during, or after

trial. In fact, the defendant reiterated during the court’s

canvass that he had discussed his decision to waive his

right to a jury trial with his attorney, that his attorney

had explained everything in detail, and that he was

satisfied with the advice given to him by counsel. The

fact that the defendant was represented by counsel and

that he conferred with counsel concerning the right to

waive his right to a jury supports the conclusion that

his waiver to a trial by jury was done knowingly and

intelligently. See, e.g., State v. Smith, 100 Conn. App.

313, 324, 917 A.2d 1017, cert. denied, 282 Conn. 920,

925 A.2d 1102 (2007); see also State v. Cobb, 251 Conn.

285, 373, 743 A.2d 1 (1999) (‘‘[a]lthough the presence

of counsel does not by itself mean that the defendant’s

interests and rights are protected . . . [t]he fact of

counsel being present and having advised the defendant

[concerning jury waiver] is a factor to be considered

in determining the question of the need for or sufficiency of any admonition given by the court’’ [internal

quotation marks omitted]), cert. denied, 531 U.S. 841,

121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).

We turn next to the court’s statements during its

colloquy with the defendant. In questioning the defendant, the court explained the difference between a jury

trial, including defense counsel’s ability to influence

jury selection, and a court trial, which the defendant

confirmed he understood. The court confirmed that the

defendant had discussed his decision to proceed with

a court trial with his attorney and inquired as to whether

he was satisfied with his counsel’s explanation. Importantly, the court unambiguously stated that the waiver

of the right to a trial by jury was an irrevocable decision,

‘‘which means if you change your mind two seconds

from now, it’s too late.’’ The defendant replied to the

court’s inquiries immediately, confirmed that he understood every aspect of the waiver repeatedly, and twice

confirmed that he was freely choosing a court trial

before the court granted the defendant’s waiver. See

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’’). At the end of the canvass,

the court asked defense counsel if he had anything

further, to which he responded, ‘‘No, that covers it,

Your Honor.’’ The issue of waiver was thus clearly

addressed by the trial court, as evidenced by the defendant’s explicit and unambiguous response to the court’s

inquiries that he had chosen to proceed to trial before

the court instead of before a jury.

In examining the totality of the circumstances, we
conclude that the defendant knowingly, intelligently

and voluntarily waived his right to a trial by jury and,

instead, elected to proceed with a court trial. The court

conducted a canvass of the defendant, on the record,

which determined that the defendant understood his

right to a trial by jury and also confirmed that he understood the irrevocability and relevant differences in

electing to instead proceed with a court trial. The record

as a whole indicates that the defendant did have a

sufficient understanding of his right to proceed to trial

before a jury such that he could have waived that right

in a constitutionally appropriate manner. We therefore

disagree with the defendant’s argument that the court

failed to ensure a knowing, intelligent and voluntary

waiver of his right to a jury trial.

The defendant next argues that the court improperly

refused to allow him to withdraw his election of a court

trial on the ground that it had misstated relevant legal

principles during its canvass. Specifically,the defendant

asserts that the court’s use of the word ‘‘create’’ in

describing the burden of proof in a criminal trial confused him because it may have caused him ‘‘to [believe]

that his attorney . . . would be unable to create a reasonable doubt in the mind of a juror, and therefore he

decided to forgo a jury trial.’’ In support of his argument,

the defendant cites numerous cases in which burden

shifting language in jury instructions or closing arguments have warranted new trials and also relies on

General Statutes § 54-82b (b) for additional support.5

Although we agree that § 54-82b (b) does provide the

defendant with the right to challenge the validity of his

waiver under certain circumstances, the record does

not indicate that the mere use of the word ‘‘create’’ in

the court’s canvass of the defendant rendered him so

confused that he was ‘‘not fully cognizant of his rights

. . . .’’ General Statutes § 54-82b (b). We do note that

in State v. Fernandez, 27 Conn. App. 73, 83, 604 A.2d

1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992),

this court opined: ‘‘The defendant requested the court

to instruct the jury that the defendant’s evidence ‘need

only be sufficient to create a reasonable doubt. Hence,

when assessing circumstantial evidence offered by the

defense, you see if it creates a reasonable doubt.’ . . .

An instruction that the jury should determine whether

the defendant has created a reasonable doubt carries

with it a substantial and totally unjustifiable risk of

diluting the constitutional requirement that the burden

of proving the defendant guilty rests squarely on the

state and that the defendant bears no burden of proving

himself innocent.’’ (Citation omitted; emphasis in original.) Given the totality of the circumstances in the present matter, however, we conclude that the court’s use

of the word ‘‘create’’ in its canvass of the defendant,

although not the clearest term it could have employed,

was not sufficiently confusing so as to conclude that

it impermissibly shifted the burden of proof onto the
defendant. It is important to note that, in its canvass

of the defendant, the court used the term ‘‘create’’ with

respect to both jury trials and court trials. Therefore,

the word ‘‘create’’ was used in a neutral manner such

that any claimed mistake was inconsequential. Furthermore, and as the state also points out on appeal, both

our Supreme Court and this court have utilized the term

‘‘create’’ in describing a defendant’s trial strategy. See

State v. Findlay, 198 Conn. 328, 344, 502 A.2d 921 (‘‘[t]he

defense counsel attempted to paint a favorable portrait

of the defendant in order to create a reasonable doubt

in the minds of the jury’’), cert. denied, 476 U.S. 1159,

106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Buster,

27 Conn. App. 263, 274, 606 A.2d 9 (1992) (‘‘[i]n his

case-in-chief, the defendant sought to create a reasonable doubt as to his guilt by presenting evidence from

several witnesses’’), aff’d, 224 Conn. 546, 620 A.2d 110

(1993). Our conclusion is only reinforced given the fact,

as noted, that the defendant was represented by counsel

at all relevant times. Accordingly, the defendant’s argument must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to use the defendant’s full name or to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

1 General Statutes § 53a-73a (a) provides in relevant part: ‘‘A person is

guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under thirteen

years of age and the actor is more than two years older than such other

person . . . .’’

2 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who

(1) wilfully or unlawfully causes or permits any child under the age of

sixteen years to be placed in such a situation that the life or limb of such

child is endangered, the health of such child is likely to be injured or the

morals of such child are likely to be impaired, or does any act likely to

impair the health or morals of any such child . . . shall be guilty of a class

C felony for a violation of subdivision (1) . . . .’’

3 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who

. . . (2) has contact with the intimate parts, as defined in section 53a-65,

of a child under the age of sixteen years or subjects a child under sixteen

years of age to contact with the intimate parts of such person, in a sexual

and indecent manner likely to impair the health or morals of such child

. . . shall be guilty of . . . a class B felony for a violation of subdivision

(2) . . . .’’

4 The defendant relies on his right to a trial by jury under both the sixth

amendment to the constitution of the United States as well as article first,

§§ 8 and 19, as amended by article four of the amendments, of the constitution of Connecticut. For purposes of this appeal, however, the defendant

does not claim that his rights under the state constitution are more extensive

than his rights under the constitution of the United States.

5 General Statutes § 54-82b (b) provides for the withdrawal of a jury trial

waiver under certain circumstances: ‘‘In criminal proceedings the judge shall

advise the accused of his right to trial by jury at the time he is put to plea

and, if the accused does not then claim a jury, his right thereto shall be

deemed waived, but if a judge acting on motion made by the accused within

ten days after judgment finds that such waiver was made when the accused

was not fully cognizant of his rights or when, in the opinion of the judge,

the proper administration of justice requires it, the judge shall vacate the

judgment and cause the proceeding to be set for jury trial.’’