Judicial District of Waterbury


      Criminal; Whether Three Judge Panel Properly Admitted Defendant's Testimony from Prior Trial; Whether Defendant Validly Waived Right to Jury Trial. The defendant was charged with murder in connection with a 1994 shooting.  The defendant's first trial, at which he did not testify, ended in a hung jury.  At his second trial, the state presented evidence that the defendant shot the victim while arguing with him outside a Waterbury club.  The defendant took the stand, testifying that a group of people surrounded him and began pushing him and that he was not sure how the gun that he was holding went off.  The jury returned a verdict of guilty.  Subsequently, the defendant filed a habeas corpus petition in which he claimed that his counsel provided ineffective assistance in failing to seek a continuance in order to develop a diminished capacity defense.  Agreeing that counsel was ineffective, the court ordered a new trial.  Upon retrial, the defendant elected a three judge panel.  During the state's case-in-chief, the defendant's testimony from his second trial was admitted over his objection.  During the defense case, a psychiatrist testified that at the time of the shooting, the defendant had a diminished capacity and lacked the judgment to correctly respond to the situation.  The defendant then testified that he pulled the trigger of the gun when he was surrounded by the group of people but that he did not mean to hit anyone.  On cross-examination, he explained the conflicting testimony from the prior trial by saying that his attorneys had pressured him into saying that the gun went off by mistake.  Subsequently, the defendant was convicted of murder.  In this appeal, the defendant argues that the panel improperly admitted his testimony from his second trial because there was no canvass by the trial court or any statement from defense counsel as to his understanding of his right not to testify or of the consequences of testifying.  Consequently, he argues, there was no evidence that he knowingly and voluntarily waived his right against self-incrimination at the second trial.  Moreover, he asserts that it cannot be presumed that counsel discussed his right to testify with him, especially in light of the finding that counsel was ineffective.  The defendant contends that he was harmed by the admission of the prior testimony because his testimony about the circumstances of the shooting was critical to his diminished capacity defense and because the conflicting testimony as to how the gun went off undermined his credibility.  In addition, he argues that the record does not support a finding that he knowingly, intelligently and voluntarily waived his right to a jury trial.