State v. Godbolt

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STATE OF CONNECTICUT v. KARON GODBOLT
(AC 36857)
Gruendel, Alvord and Mullins, Js.
Argued September 11—officially released November 17, 2015

(Appeal from Superior Court, judicial district of
Litchfield, Ginocchio, J.)
Elizabeth Knight Adams, for the appellant
(defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, was David S. Shepack,
state’s attorney, for the appellee (state).
Opinion

MULLINS, J. The defendant, Karon Godbolt, appeals
from the judgment of conviction, rendered after a jury
trial, of three counts of burglary in the first degree in
violation of General Statutes § 53a-101 (a) (1), (2), and
(3); one count of harassment in the second degree in
violation of General Statutes § 53a-183 (a) (3); one count
of carrying a dangerous weapon in violation of General
Statutes § 53-206; one count of disorderly conduct in
violation of General Statutes § 53a-182 (a) (1); and one
count of possession of drug paraphernalia in violation of
General Statutes § 21a-267 (a). On appeal, the defendant
claims that the trial court abused its discretion and
denied him his sixth amendment and state constitu-
tional rights to present a complete defense by failing
to permit him a continuance so that he could secure
the attendance of an out-of-state alibi witness. We
affirm the judgment of the trial court.
The facts underlying this appeal arise out of the defen-
dant’s July, 2013 jury trial for conduct that occurred
between May 19 and 21, 2012. At trial, the defendant’s
former girlfriend, Jessica Siddell, testified that on May
20, 2012, at approximately 3 a.m., she awoke in her
Torrington apartment to the defendant tapping her on
the forehead with the blunt side of a knife. Taking the
stand in his own defense, the defendant testified that
at that time he was instead with Shelly Romano at her
mother’s home in Winsted.
The defendant had been arrested on May 21, 2012,
for the incident with Siddell and related events. On June
22, 2012, the state filed a demand for notice of alibi
defense. More than one year later, the defendant filed
a notice of alibi defense dated July 8, 2013, wherein he
indicated that he would rely on Romano, who was living
in Owensborough, Kentucky, as an alibi witness.
Jury selection began on July 10, 2013. On July 11, at
the conclusion of jury selection, the court told counsel
to have their witnesses ready to testify on July 17 and
that it would not allow the trial to be delayed because
of their failure to do so. The state indicated that its
case-in-chief likely would conclude on the second day
of trial. After confirming with defense counsel that
Romano would be traveling from Kentucky to testify,
the court ended by stating that ‘‘I don’t want to hear
that [she’s] stuck in a—some type of a car breakdown
on the 17th, [or that she] can’t be up here until Friday.
I’m not going to accept excuses . . . because you all
have been given plenty of time to prepare for this case.’’
The trial began as scheduled on Wednesday, July 17,
2013. The state called several witnesses but did not
conclude its case-in-chief on that day. The next morn-
ing, the court began the proceedings by asking defense
counsel ‘‘to report in on witnesses.’’ Defense counsel
responded that he had spoken to Romano the night
before and was doubtful that she could testify before
the following Monday because she was still in Kentucky
and had not yet boarded a bus to Connecticut. Defense
counsel explained that if Romano boarded a bus that
morning, a Thursday, she would not arrive until Friday
afternoon. Defense counsel admitted, however, that
Romano had not yet boarded any bus, and, moreover,
that she did not even have the necessary bus fare to
do so.1
The court inquired into the state’s position on the
defendant’s suggestion of a continuance given that
Romano could not testify until possibly Monday, July 22,
2013. In response, the state drew the court’s attention
to the July 11 discussion regarding the attendance of
witnesses, the fact that the trial date in this case had
been set some time ago, and the failure of defense
counsel to subpoena Romano, who, in this case, was
known to have been living out of state for some time
prior to the start of trial.2
After hearing from both parties regarding the poten-
tial continuance, the trial court stated: ‘‘I’m more than
likely not going to continue the case because
[Romano’s] reasoning for not being here is vague. And
there’s really no concrete explanation as to why she’s
not here today or tomorrow. I was going to give her
[until] tomorrow. And [defense counsel is] telling me
she won’t be here tomorrow.’’ Then, after noting that
the evidentiary portion of the trial was likely to con-
clude that day and the charging conference could take
place as soon as that afternoon, the court concluded:
‘‘Unless you tell me that she’ll be here tomorrow I will
not continue the case until next week for her to be
here because of the explanation that’s been put on
the record.’’ Defense counsel responded that he would
telephone Romano during the break to ascertain her
expected arrival time.
Later that day, before the lunch recess, defense coun-
sel again indicated that he planned to telephone
Romano. The court responded: ‘‘You tell her, if she’s
here tomorrow morning, and even if you’re done with
your case today, there’s a good chance this court would
allow her to testify in the morning. . . . I’m not going
into next week. . . . Because I did give everybody
notice that this case was going to be tried on these
dates. . . . Defense counsel really has not offered any
excuse as to why a witness who he felt was willing to
come in and testify on behalf of the defendant, who
has known about the case for a substantial period of
time, has made no reasonable showing as to why she
can’t be here, other than cryptic and vague messages
that it’s not the right time, she doesn’t have the money;
it doesn’t convince the court to grant a continuance
past tomorrow with regard to that witness.’’
Defense counsel never reported back to the court
regarding what he had learned from his phone call to
Romano concerning her possible attendance at the trial.
Instead, after the lunch recess, the defendant began
presenting his case-in-chief and took the witness stand
in his own defense. After he testified, the court inquired
whether the defense had any more witnesses. Defense
counsel responded ‘‘no,’’ and the defendant then rested
his case without any mention of Romano. Romano did
not testify at the trial.
On Tuesday, July 23, 2013, counsel presented closing
arguments and the jury began its deliberations. On July
24, 2013, the jury returned a guilty verdict, and the
court thereafter rendered a judgment of conviction and
imposed a sentence of twenty years imprisonment, exe-
cution suspended after twelve years, and five years of
probation. This appeal followed.
The defendant claims on appeal that the trial court
denied him his right to present a complete defense
when it did not grant him a two day continuance to
secure Romano’s attendance at trial as an alibi witness.
Specifically, he argues that the trial court’s denial of
a continuance was an abuse of discretion because it
arbitrarily elevated the orderly administration of the
trial over his sixth amendment right to present a com-
plete defense.
In response, the state argues that the defendant
waived this issue at trial by (1) failing to subpoena
Romano, (2) failing to make a timely motion for a con-
tinuance, and (3) acquiescing when the court indicated
that in the absence of a valid reason for doing so, it
would not continue the trial indefinitely. Alternatively,
the state argues that the court reasonably exercised its
discretion when it declined to continue the trial for
an indefinite period of time. We agree with the state’s
alternative argument.3
We first set forth our standard of review and the
relevant legal principles.4 ‘‘The determination of
whether to grant a request for a continuance is within
the discretion of the trial court, and will not be disturbed
on appeal absent an abuse of discretion. . . .
‘‘A reviewing court is bound by the principle that
[e]very reasonable presumption in favor of the proper
exercise of the trial court’s discretion will be made.
. . . To prove an abuse of discretion, an appellant must
show that the trial court’s denial of a request for a
continuance was arbitrary. . . . There are no mechani-
cal tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer
must be found in the circumstances present in every
case, particularly in the reasons presented to the trial
judge at the time the request is denied. . . . In the
event that the trial court acted unreasonably in denying
a continuance, the reviewing court must also engage
in harmless error analysis. . . .
‘‘Among the factors that may enter into the court’s
exercise of discretion in considering a request for a
continuance are the timeliness of the request for contin-
uance; the likely length of the delay; the age and com-
plexity of the case; the granting of other continuances in
the past; the impact of delay on the litigants, witnesses,
opposing counsel and the court; the perceived legiti-
macy of the reasons proffered in support of the request;
the defendant’s personal responsibility for the timing
of the request; [and] the likelihood that the denial would
substantially impair the defendant’s ability to defend
himself . . . . We are especially hesitant to find an
abuse of discretion where the court has denied a motion
for continuance made on the day of the trial. . . .
‘‘Lastly, we emphasize that an appellate court should
limit its assessment of the reasonableness of the trial
court’s exercise of its discretion to a consideration of
those factors, on the record, that were presented to the
trial court, or of which that court was aware, at the
time of its ruling on the motion for a continuance.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. Davis, 135 Conn. App.
385, 393–94, 42 A.3d 446, cert. denied, 305 Conn. 916,
46 A.3d 171 (2012).
In light of the information available to the court when
it considered the defendant’s proffered reasons for pro-
longing the trial to secure Romano’s attendance, we
conclude that it did not abuse its discretion when it
declined to grant the defendant a continuance. The trial
court properly considered the timing of the defendant’s
request, the unspecified length of the requested delay,
and the defendant’s role in necessitating the delay.
First, the trial court properly took into account the
timing of the defendant’s request. The defendant did
not intimate that he would have any problems securing
Romano’s presence at trial until after the trial already
had commenced. As we already have noted, we hesitate
to conclude that a trial court abused its discretion by
denying a motion for continuance made when trial was
already underway. See id., 394. ‘‘The trial court has the
responsibility to avoid unnecessary interruptions, to
maintain the orderly procedure of the court docket, and
to prevent any interference with the fair administration
of justice. . . . Once a trial has begun . . . a defen-
dant’s right to due process . . . [does not entitle] him
to a continuance upon demand.’’ (Citation omitted;
internal quotation marks omitted.) State v. Stevenson,
53 Conn. App. 551, 562, 733 A.2d 253, cert. denied, 250
Conn. 917, 734 A.2d 990 (1999).
In the present case, the trial court was free to consider
that the defendant did not raise the possibility of contin-
uing the trial until the state was nearing the end of its
case-in-chief. Indeed, in light of the late hour of the
request and the defendant’s failure to utilize available
procedures for securing Romano’s attendance, i.e., issu-
ing a subpoena for Romano, the court reasonably could
have concluded that the defendant’s continuance
request was untimely. See State v. Cecil J., 99 Conn.
App. 274, 292–93, 913 A.2d 505 (2007) (‘‘for purposes
of examining the timeliness of [the] motion [for a contin-
uance], the defendant . . . had months in which to
seek judicial orders that would permit him to question
witnesses who might otherwise be unavailable to tes-
tify’’), aff’d, 291 Conn. 813, 970 A.2d 710 (2009).
Second, the trial court properly considered the
unspecified length of the potential delay. ‘‘Our judicial
system cannot be controlled by the litigants and cases
cannot be allowed to drift aimlessly through the system.
. . . Judges must be firm and create the expectation
that a case will go forward on the specific day that it
is assigned.’’ (Internal quotation marks omitted.) State
v. Stevenson, supra, 53 Conn. App., 563–64. It is, there-
fore, within the trial court’s discretion to deny a continu-
ance when the length of the delay sought is unspecified.
See id., 563 (affirming denial of continuance to sub-
poena out-of-state witness where defendant failed to
specify probable length of delay and could not assure
trial court that he would be successful in obtaining
witness’ attendance).
Here, although the defendant claims on appeal that
he sought only a ‘‘two day’’ continuance, the actual
length of the continuance was never made clear to
the trial court.5 In the discussion on the morning of
Thursday, July 18, 2013, defense counsel indicated that
if Romano boarded a bus that morning, she would arrive
in Connecticut on Friday afternoon and could testify
on the following Monday. This was not a request to
continue the trial until Monday. In fact, later on in the
discussion, defense counsel conceded that Romano had
not yet procured bus fare, let alone boarded the neces-
sary bus.
Moreover, although the trial court permitted the
defendant to find out during the lunch recess when
Romano might be available, the record is devoid of any
indication that he did so. In other words, the defendant
gave the trial court no assurances that Romano ever
would have bus fare or ever would board a bus and
travel to Connecticut. Thus, on this record, the defen-
dant never presented the court with a specific time
frame for the continuance. Accordingly, the court prop-
erly factored the uncertain length of the requested delay
into its denial of a continuance.
Third, the trial court properly considered the defen-
dant’s responsibility for the requested delay and the
vagueness of the explanation offered for Romano’s
absence. ‘‘If the criminal defendant requests a continu-
ance to await the return of an absent witness, he bears
the burden of providing a good faith justification for
such a continuance.’’ State v. Gordon, 197 Conn. 413,
424B, 504 A.2d 1020 (1985) (affirming denial of continu-
ance where motion was made close to conclusion of
state’s case and there was no representation as to when
defense counsel expected missing witness to become
available).
The defendant had known at least since July 8, 2013,
the date that he filed his notice of alibi defense, that
Romano would be traveling from Kentucky to testify.
Nevertheless, not until ten days later, on the day the
testimony was likely to conclude, did he seek a delay.
Moreover, at the time he requested the delay, he offered
no explanation as to why an attempt to procure bus
fare for Romano had been made only the night before.
Nor did he indicate what, if any, attempts he had made
to secure her attendance at trial in the week since the
trial court’s direction to counsel to have witnesses ready
by July 17. Thus, the trial court properly considered
this lack of justification for Romano’s absence when
declining to grant the defendant a continuance. Because
the defendant had adequate notice that trial was
approaching and still waited until the last possible
moment to alert the court to Romano’s alleged difficul-
ties in procuring transportation to Connecticut, the
court’s decision not to grant an eleventh hour continu-
ance was not an abuse of discretion. See State v. Bru-
netti, 279 Conn. 39, 81–82, 901 A.2d 1 (2006) (affirming
denial of request for continuance where defense coun-
sel knew that individual was likely to be defense witness
but made no attempt to locate witness until trial was
nearly over), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328,
167 L. Ed. 2d 85 (2007).
On the basis of our review of the foregoing factors
and the circumstances of this case, we conclude that
the trial court’s decision not to grant the defendant a
continuance was neither arbitrary nor unreasonable,
and, therefore, the court did not abuse its discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The following colloquy took place between the trial court and defense
counsel:
‘‘The Court: [H]as anybody inquired as to what a bus ticket from Kentucky
to Bridgeport or New York City would cost?
‘‘[Defense Counsel]: It’s approximately $380.
‘‘The Court: And no one has made any attempt to get that money to her
or she’s made no attempt to raise the money herself?
‘‘[Defense Counsel]: She’s asked to borrow the money, as I understand
the public defender system I can—I’ve told her I can get her reimbursed
once I have the receipt and the ticket.
‘‘The Court: Has your client or his family made any attempt to try to get
her up here and pay for the bus fee?
‘‘[The Defendant]: Last night.
‘‘The Court: I’ll let you speak on his behalf. I don’t think he should have
to address it.
‘‘[Defense Counsel]: Okay. As I understand it, they tried last night.
‘‘The Court: Tried—
‘‘[Defense Counsel]: Now I haven’t spoken to them.
‘‘The Court: —what last night?
‘‘[Defense Counsel]: To contact her. And then I got an e-mail this morning
from a family member saying that [Romano] couldn’t be here . . . before
Monday.
‘‘The Court: And why couldn’t she be here before Monday?
‘‘[Defense Counsel]: Because of the bus schedule, by the time the bus
leaves, if she left this morning she could be here some[time] tomorrow
afternoon.
‘‘The Court: So, did she eventually come up with the money, is there
somehow she did now come up with the money for the bus fare?
‘‘[Defense Counsel]: I—I don’t know why she didn’t come up with the
money for bus fare, Your Honor.
‘‘The Court: But, does she have the money for bus fare now?
‘‘[Defense Counsel]: I don’t know.
‘‘The Court: So, is it a matter of just to schedule the bus or she doesn’t
have the money?
‘‘[Defense Counsel]: She doesn’t have the money.
‘‘The Court: So, is there any reason to believe she’ll have the money Friday
night, Saturday night, or Sunday night?
‘‘[Defense Counsel]: When [the defendant’s] family is here I can inquire.
They’re coming today.’’
2
At no point during the proceedings did the defendant ever subpoena
Romano. See General Statutes § 54-82i (c).
3
‘‘[W]aiver is [t]he voluntary relinquishment or abandonment—express
or implied—of a legal right or notice. . . . In determining waiver, the con-
duct of the parties is of great importance. . . . [W]aiver may be effected
by action of counsel. . . . When a party consents to or expresses satisfac-
tion with an issue at trial, claims arising from that issue are deemed waived
and may not be reviewed on appeal. . . . Thus, [w]aiver . . . involves the
idea of assent . . . .’’ (Emphasis omitted; internal quotation marks omitted.)
State v. Santiago, 142 Conn. App. 582, 595, 64 A.3d 832, cert. denied, 309
Conn. 911, 69 A.3d 307 (2013).
We note that although the defendant did not make a specific, timely written
or oral motion for a continuance, the July 18, 2013 discussion between the
court and the parties regarding Romano and her attendance at the trial
clearly demonstrated to the court that defense counsel was seeking to
continue the trial to a point when Romano could come to court to testify
and the state was objecting to such a continuance. See State v. Victor C.,
145 Conn. App. 54, 70, 75 A.3d 48 (assuming arguendo that single sentence
in which defense counsel sought delay was sufficient to constitute request
for continuance), cert. denied, 310 Conn. 933, 78 A.3d 859 (2013). Further,
we do not infer that he voluntarily abandoned his request for a continuance
by failing to subpoena Romano and to object when the court indicated that
it would not continue the trial indefinitely without a valid reason to do so,
particularly because the record shows that defense counsel proffered rea-
sons why the court should continue the case. See State v. Nelson, 118
Conn. App. 831, 841 n.3, 986 A.2d 311 (rejecting argument that defendant’s
affirmative representation that he was ready to proceed, made after court
indicated that it would not grant requested continuance, constituted waiver),
cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010).
In any event, even though the defendant’s continuance request was less
than clear, we will review his claim on appeal because the minimal require-
ments for review are met and the defendant cannot prevail on his claim.
See In re Shane M., 318 Conn. 569, 585 n.14, A.3d (2015). In reviewing
the claim, we note that the grounds that the state asserts in support of its
waiver argument are pertinent to our conclusion that the trial court properly
exercised its discretion in declining to grant a continuance.
4
Although the defendant couches his claim on appeal in terms of a denial
of his constitutional right to present a complete defense, we will review the
trial court’s refusal to grant a continuance for an abuse of discretion. ‘‘Even
if the denial of a motion for a continuance . . . can be directly linked to
a claim of a denial of a specific constitutional right, if the reasons given for the
continuance do not support any interference with the specific constitutional
right, the court’s analysis will revolve around whether the trial court abused
its discretion. State v. Bethea, 167 Conn. 80, 85–87, 355 A.2d 6 (1974) (no
abuse of discretion to deny continuance despite deprivation of sixth amend-
ment claim when no showing that defendant attempted to find alibi witness,
that witness would establish alibi defense or that witness available). In other
words, the constitutional right alleged to have been violated must be shown,
not merely alleged. See Whyte v. Commissioner of Correction, 53 Conn.
App. 678, 682–83, 736 A.2d 145, cert. denied, 250 Conn. 920, 738 A.2d 663
(1999); see also Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L.
Ed. 2d 956 (1991).’’ In re Shaquanna M., 61 Conn. App. 592, 602–603, 767
A.2d 155 (2001).
5
At oral argument before this court, defense counsel admitted that the
length of the continuance sought was not exact and that the defendant may
have needed a ‘‘two or three day’’ continuance.