State v. Connor ( 2016 )

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STATE OF CONNECTICUT v. JEFFREY T. CONNOR
(SC 19421)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and
Vertefeuille, Js.
Argued January 26—officially released May 17, 2016
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Anne Mahoney and Denise B. Smoker, senior
assistant state’s attorneys, for the appellant (state).
Mary Boehlert, assigned counsel, for the appellee
(defendant).
Opinion
McDONALD, J. In State v. Connor, 292 Conn. 483,
487, 533, 973 A.2d 627 (2009), this court remanded the
criminal case of the defendant, Jeffrey T. Connor, to the
trial court with direction to reconsider the defendant’s
competency to represent himself in light of a new stan-
dard that this court adopted in the defendant’s direct
appeal. Following that remand, the trial court con-
cluded that the defendant had been competent to repre-
sent himself, and the defendant challenged that decision
before the Appellate Court as an abuse of discretion.
See State v. Connor, 152 Conn. App. 780, 100 A.3d 877
(2014). The dispositive issue in the state’s certified
appeal is whether the Appellate Court properly reversed
the trial court’s judgment on the ground that the remand
hearing was procedurally flawed. The state contends
that the Appellate Court raised this issue sua sponte in
derogation of Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 311 Conn. 123,
162–64, 84 A.3d 840 (2014) (Blumberg). We agree and,
accordingly, reverse the judgment of the Appellate
Court and remand the case to that court with direction
to consider the issue raised in the defendant’s appeal.
The record reveals the following undisputed facts and
procedural history. The defendant was charged with a
number of crimes1 in connection with the abduction of
his former wife. State v. Connor, supra, 292 Conn. 486,
488. The extensive pretrial proceedings reflected
repeated attempts by the trial court to ascertain the
defendant’s competency both to stand trial and to dis-
charge his court-appointed counsel and represent him-
self. Id., 489. The defendant’s competency had been
called into doubt due to the fact that he had suffered
a debilitating stroke and exhibited signs of mental ill-
ness. Id., 490–91. The efficacy of these proceedings was
complicated by the defendant’s refusal to cooperate
with the medical professionals tasked with evaluating
him and his intermittent unresponsiveness in court. Id.,
491–92, 497. In reliance on the opinion of several medi-
cal professionals, the trial court, McMahon, J., con-
cluded that the defendant’s refusal to cooperate was
‘‘ ‘volitional’ ’’; id., 495; and the trial court, Miano, J.,
thereafter concluded that the defendant was ‘‘malinger-
ing,’’ and found him competent to stand trial. Id., 499.
The defendant’s case proceeded to trial before Judge
Espinosa,2 who similarly concluded that the defendant’s
unresponsiveness during jury selection reflected his
continued ‘‘ ‘malingering.’ ’’ Id., 500–501. The defendant
explained that he had previously refused to cooperate
because he did not want his appointed counsel to repre-
sent him, and requested that he be permitted to repre-
sent himself. Id., 501. After defense counsel summarized
the history of the case with respect to the defendant’s
competency and desire to represent himself, Judge
Espinosa canvassed the defendant, asking him ques-
tions about, inter alia, his educational background and
his ability to recall information pertinent to his case.
Id., 501–502. Judge Espinosa ultimately concluded that
the defendant was ‘‘competent to represent himself. He
is articulate, he’s lucid, he knows what he’s doing. He
. . . devised a calculated plan to disrupt the trial in
front of Judge Miano because he wasn’t getting his
way with his lawyer . . . .’’ (Internal quotation marks
omitted.) Id., 503. Judge Espinosa therefore permitted
the defendant to represent himself, but appointed his
defense counsel as standby counsel. Id. A jury convicted
the defendant on all but one of the charges against him.
Id., 504.
The defendant directly appealed the judgment of con-
viction to this court claiming, inter alia, that Judge
Espinosa had improperly found that he was competent
to represent himself. Id., 505. At the time of the defen-
dant’s trial, our courts were bound by federal case law
that had indicated that ‘‘a [criminal] defendant who has
been found competent to stand trial as a matter of state
law . . . also is competent to waive the right to coun-
sel. Application of a stricter competency test in the
latter analysis than was used in the former would place
an unconstitutional burden in the exercise of the defen-
dant’s federal constitutional right of self-representa-
tion.’’ State v. Day, 233 Conn. 813, 825, 661 A.2d 539
(1995), overruled in part by State v. Connor, 292 Conn.
483, 528 n.29, 973 A.2d 627 (2009). While the defendant’s
appeal was pending, however, the United States
Supreme Court clarified that individual states may
adopt standards for determining whether a defendant
is competent to represent himself that are more
demanding than the standard used for determining
whether a defendant is competent to stand trial. See
Indiana v. Edwards, 554 U.S. 164, 177–78, 128 S. Ct.
2379, 171 L. Ed. 2d 345 (2008). Accordingly, although
a more stringent standard was not constitutionally man-
dated, this court elected to adopt such a standard in
the defendant’s appeal pursuant to the exercise of our
supervisory authority. State v. Connor, supra, 292 Conn.
528 n.28. Under this standard, when a trial court is
presented with a mentally ill or mentally incapacitated
defendant who has been found competent to stand trial;
id., 527; a defendant’s competency to represent himself
would depend ‘‘on his ability to carry out the basic
tasks needed to present his own defense without the
help of counsel . . . notwithstanding any mental inca-
pacity or impairment serious enough to call that ability
into question.’’ (Citation omitted; internal quotation
marks omitted.) Id., 530.
The court noted, however, that ‘‘[b]ecause Edwards
had not been decided prior to the conclusion of the
trial in the present case, Judge Espinosa had no alterna-
tive, in light of our holding in State v. Day, supra, 233
Conn. 825, but to permit the defendant to represent
himself once it was determined that he was competent
to stand trial. We therefore do not know whether Judge
Espinosa would have granted the defendant’s request
to represent himself if she had had the authority to
deny the request in accordance with Edwards and our
holding in the present case. Consequently, the case
must be remanded for a determination by the court,
Espinosa, J., as to whether the defendant then was
competent, notwithstanding any mental disability, to
conduct the trial proceedings by himself. In making this
determination, the trial court, which . . . is ‘best able
to make [such a] fine-tuned mental capacity [decision],
tailored to the individualized circumstances of a partic-
ular defendant’; Indiana v. Edwards, supra, 554 U.S.
177; should consider any and all relevant information,
including, but not limited to, the extent to which the
defendant’s competence to represent himself may have
been affected by mental illness, by the stroke that he
had suffered, and by any memory problems that he may
have experienced as a result of that stroke. The court
also should evaluate the extent to which the defendant
may have been feigning mental problems. Because of
the defendant’s refusal to cooperate with the various
evaluation teams that had been assembled to assess
his competency, it is difficult to discern whether the
defendant suffered from a mental illness that, alone or
in combination with his stroke, may have rendered him
incompetent to represent himself. Accordingly, the trial
court may seek to have the defendant examined again
if it appears that such an examination would be helpful
in resolving the issue presented on remand.’’ (Footnotes
omitted.) State v. Connor, supra, 292 Conn. 528–29. The
court noted that, if the trial court elected to do an
evaluation and the defendant persisted in refusing to
cooperate, ‘‘the trial court would have no choice but
to make a determination concerning the defendant’s
competency to represent himself at the trial that is
limited generally to its recollection of the proceedings
and its review of the trial transcript and arguments of
counsel.’’ Id., 529 n.31.
In early 2011, Judge Espinosa began the remand pro-
ceedings, but was elevated to the Appellate Court
before they could be completed. See footnote 2 of this
opinion. In September, 2011, Judge Schuman assumed
responsibility for the remand proceedings. In January,
2012, Judge Espinosa executed an affidavit based on her
recollections of the defendant’s trial. Judge Espinosa’s
affidavit stated, inter alia, that the defendant had
‘‘appeared to be engaged in every aspect’’ of his trial,
had ‘‘demonstrated an understanding of the evidence
presented,’’ and had ‘‘carried out the basic tasks needed
to present his own defense in a manner similar to other
self-represented’’ parties that had appeared before her.
She acknowledged that the defendant had made certain
‘‘irrelevant’’ statements, but opined that they appeared
to be calculated attempts to elicit sympathy from the
jury. Judge Espinosa further attested that the defendant
had ‘‘demonstrated that he was sufficiently capable of
carrying out the basic tasks needed to present his own
defense without the assistance of counsel.’’
Judge Schuman subsequently held two hearings. At
the first hearing, Judge Schuman outlined his plan to
make a determination regarding the defendant’s compe-
tency to represent himself on the basis of the trial tran-
scripts, Judge Espinosa’s affidavit,3 and oral argument
from the parties. At the end of the hearing, Judge Schu-
man appointed counsel for the defendant because he
was unresponsive. At the second hearing, the court
granted defense counsel’s request to admit the defen-
dant’s medical records from the Department of Correc-
tion. At no point did anyone object to Judge Schuman
conducting the proceedings or to the procedure pro-
posed by Judge Schuman to make the competency
determination.4
Judge Schuman thereafter issued a memorandum of
decision in which he determined that the defendant had
been competent to represent himself at the time of his
trial. Judge Schuman first set forth a summary of the
defendant’s conduct during trial, gleaned from the trial
transcripts. He then turned to the defendant’s medical
records and explained why he had declined to give them
any weight. He noted that the medical professionals
who had formed opinions about the defendant’s compe-
tency to stand trial had not observed the defendant at
trial and would not be helpful in assessing the legal
question of whether the defendant could adequately
represent himself despite any mental impairment.
Finally, he set forth Judge Espinosa’s observations, as
reflected in her affidavit. In his analysis, Judge Schuman
acknowledged that the transcripts had revealed some
troubling issues regarding the defendant’s ability to rep-
resent himself. Nonetheless, he concluded that the most
serious charges against the defendant were not readily
defensible and noted Judge Espinosa’s opinion that
some of the defendant’s actions may have been attempts
to gain sympathy from the jury. In conclusion, Judge
Schuman noted: ‘‘Judge Espinosa has made the critical
finding that the defendant, while lacking technical profi-
ciency, could perform the basic tasks needed to defend
himself without the assistance of counsel. That finding
establishes that the defendant’s performance has met
the ultimate standard that applies in this context. . . .
The court must give considerable deference to this find-
ing because Judge Espinosa heard the trial. Reading
the transcript is no substitute for the opportunity, which
only Judge Espinosa had, to observe whether the defen-
dant had a reasonable understanding of how the trial
process worked, to assess whether his occasional unor-
thodoxy represented fumbling ineptitude or wilful strat-
egy, and to measure just how well the defendant
interacted with the jury. Based largely on Judge Espino-
sa’s first hand assessment of the defendant’s perfor-
mance, the court concludes that the defendant was
competent to represent himself at trial.’’ (Citation
omitted.)
The defendant appealed to the Appellate Court from
the judgment, claiming in his brief to that court that ‘‘the
trial court abused its discretion when it erroneously
concluded that the [defendant] was competent to repre-
sent himself at trial despite his mental illness or mental
incapacity.’’ Specifically, the defendant argued ‘‘that the
evidence in this case . . . presents a substantial basis
for the [trial court] to have found that [the defendant]
was incompetent to represent himself at trial.’’ In sup-
port of that claim, the defendant cited the behavior and
diagnoses documented in his medical records, the fact
that his competency had been questioned on numerous
occasions prior to trial, and his behavior at trial evi-
denced in the trial transcripts. In its brief, the state
responded by contending that the evidence, particularly
Judge Espinosa’s affidavit, established that the trial
court properly concluded that the defendant was com-
petent to represent himself.
The Appellate Court reversed the trial court’s judg-
ment, concluding that the trial court ‘‘did not conduct
a meaningful hearing to evaluate retrospectively the
competency of the defendant. Indeed, the indeterminate
state of the record precluded the court from retrospec-
tively determining the defendant’s competency with the
degree of reliability that would have accompanied a
competency determination contemporaneous with the
defendant’s trial.’’ State v. Connor, supra, 152 Conn.
App. 795–96. The court further determined that,
because ‘‘of the unorthodox sequence of events on
remand’’ and the fact that eight years had passed since
the defendant’s trial, a ‘‘procedurally adequate compe-
tency determination’’ was ‘‘no longer possible’’ because
it ‘‘would be unduly and impermissibly speculative’’;
id., 810–11; and the defendant was entitled to a new
trial.5 Id., 817.
The state thereafter filed a motion for reconsideration
or reargument en banc, claiming that the Appellate
Court had violated Blumberg by raising sua sponte the
issue of whether the defendant had received a meaning-
ful hearing. The Appellate Court denied the state’s
motion.
We then granted the state’s petition for certification
to appeal to this court, limited to the following issues:
(1) ‘‘Did the Appellate Court properly consider whether
the trial court’s remand hearing was procedurally
flawed?’’; and (2) ‘‘If the answer to the first question
is in the affirmative, did the Appellate Court properly
conclude that the defendant’s convictions must be
vacated?’’ State v. Connor, 315 Conn. 903, 903–904, 104
A.3d 757 (2014). With respect to the first question, the
state claims that the defendant never raised, and there-
fore waived, any claim that the remand proceedings
were procedurally flawed, and, accordingly, the Appel-
late Court’s decision to resolve the appeal sua sponte
on this basis violated Blumberg. The defendant con-
tends that the Appellate Court properly decided the
appeal on the basis of issues raised by the parties,
but argues that, even if the Appellate Court raised the
procedural issue sua sponte, doing so was proper under
Blumberg. We agree with the state’s argument on the
first certified question, and therefore need not reach
the second certified question.
Our appellate courts generally do not consider issues
that were not raised by the parties. Blumberg, supra,
311 Conn. 164. This is because ‘‘our system is an advers-
arial one in which the burden ordinarily is on the parties
to frame the issues . . . .’’ Id. There are, however, well
established exceptions to this rule. In Blumberg, we
surveyed our case law in which we have made such
exceptions and categorized the circumstances under
which reviewing courts properly may raise and decide
unpreserved issues. Id., 161–64. We noted that an appel-
late court has discretion to raise an unpreserved issue if
three conditions are met: (1) exceptional circumstances
exist; (2) the parties have been afforded an opportunity
to be heard on the issue; and (3) there is no unfair
prejudice to the party against whom the issue is to be
decided. Id., 128.
Before turning to the question of whether those con-
ditions were satisfied in the present case, we must
determine whether the defendant asserted a claim that
the remand proceedings were procedurally flawed or
whether the Appellate Court raised this issue sua
sponte. Although we apply the abuse of discretion stan-
dard to the question of whether the Appellate Court
properly determined that the Blumberg conditions were
satisfied; id., 167–68; this threshold waiver question is
subject to plenary review. See State v. Davis, 311 Conn.
468, 477, 88 A.3d 445 (2014); State v. Commins, 276
Conn. 503, 510, 886 A.2d 824 (2005), overruled on other
grounds by State v. Elson, 311 Conn. 726, 754, 91 A.3d
862 (2014); cf. Flannery v. Singer Asset Finance Co.,
LLC, 312 Conn. 286, 299, 94 A.3d 553 (2014) (interpreta-
tion of pleadings subject to plenary review). We con-
clude that the defendant did not raise the issue on which
the appeal was decided, and, therefore, the Appellate
Court raised it sua sponte.
The record reveals the following additional facts and
procedural history relevant to our resolution of this
issue. The remand hearing proceeded before Judge
Schuman without the defendant or his counsel interpos-
ing any objections. Other than his medical records,
admitted over the state’s objection, the defendant did
not attempt to introduce any new documentary evi-
dence or witness testimony. Defense counsel acknowl-
edged that they had sought out mental health
professionals to evaluate the trial transcripts, but those
professionals had indicated that they would be unable
to render any kind of a significant opinion on that basis.
The defendant never sought to have Judge Espinosa
testify, nor did he argue that her affidavit was lacking in
any way. Indeed, defense counsel argued before Judge
Schuman ‘‘that we have before us the affidavit of Judge
Espinosa, on one hand, and the transcripts on the other,
and in between are medical records from the Depart-
ment of Correction, which I would suggest to the court
. . . would put to rest the idea . . . whether or not
[the defendant] was, at the time, suffering from any
mental illness.’’ At the close of the hearings, in response
to the state’s reliance on Judge Espinosa’s affidavit,
defense counsel stated: ‘‘I suppose the simplest thing for
the court to do here, because [the case] was remanded
specifically to Judge Espinosa for a finding, is to just
. . . accept her affidavit at face value and move on.’’
Nonetheless, defense counsel noted that he disagreed
with the conclusions that Judge Espinosa had drawn
from the conduct displayed by the defendant. When
Judge Schuman later asked how much deference he
should give to the affidavit, defense counsel stated: ‘‘I
am under no illusion that you won’t give deference at
all; as I said, I disagree with it. I disagree with it heartily,
but she was the judge and it was returned to her for
her opinion.’’
Following Judge Schuman’s decision, the defendant
claimed in his brief to the Appellate Court that ‘‘the
trial court abused its discretion when it erroneously
concluded that the [defendant] was competent to repre-
sent himself at trial despite his mental illness or mental
incapacity.’’ In support of that claim, the defendant
argued ‘‘that the evidence in this case . . . presents a
substantial basis for the [trial court] to have found that
[the defendant] was incompetent to represent himself
at trial.’’ The defendant cited the information docu-
mented in his medical records, the fact that his compe-
tency had been questioned on numerous occasions
prior to trial, and his behavior at trial as evidenced
by the trial transcripts. The defendant argued that the
evidence in his case was comparable to that in Indiana
v. Edwards, supra, 554 U.S. 177–78, wherein the trial
court had concluded that the defendant was not compe-
tent to represent himself despite his competency to
stand trial. In the present case, the defendant’s analysis
of his claim made no reference to Judge Espinosa’s
affidavit; he simply acknowledged its filing and conclu-
sion in his preliminary statement of the facts and proce-
dural history of the case. The state’s responsive brief
contended that the evidence, particularly Judge Espino-
sa’s affidavit, established that the trial court properly
concluded that the defendant was competent to repre-
sent himself.
In its opinion, the Appellate Court initially broadly
framed the issue before it as whether the trial court
‘‘improperly determined that [the defendant] was com-
petent to represent himself . . . .’’ State v. Connor,
supra, 152 Conn. App. 795. The Appellate Court then
noted that, although such determinations ordinarily
would be made at a time substantially contemporane-
ous with a mentally ill or incapacitated defendant’s
request for self-representation, that did not happen in
the present case. The Appellate Court noted that retro-
spective (or nunc pro tunc)6 competency determina-
tions are generally disfavored and only permissible
when they are the product of a meaningful hearing.
Id., 801. The Appellate Court further explained: ‘‘In the
present case, by way of remanding the matter to the
trial court with direction to render a nunc pro tunc
competency determination, our Supreme Court implic-
itly determined that it was permissible for the trial court
to render such a determination at that time. The implied
permissibility of the nunc pro tunc competency determi-
nation, however, was predicated on the assumption that
Judge Espinosa would conduct the remand proceed-
ings, as was plainly set forth in our Supreme Court’s
mandate to the trial court. . . . Judge Espinosa, how-
ever, did not conduct the remand proceedings. . . .
Our Supreme Court’s mandate to the trial court did not
account for such a contingency and, consequently, in
order to resolve the defendant’s claim on appeal that
the competency determination was improper, we must
examine the basis of and grounds of Judge Schuman’s
determination that the defendant was competent to rep-
resent himself . . . .’’ (Citations omitted; footnotes
omitted.) Id., 802–804.
The court noted that, although this court had
assumed that Judge Espinosa’s determination would
require the exercise of discretion, Judge Schuman did
not, under the circumstances, make the discretionary
determination that this court had sought from Judge
Espinosa. Id., 803 n.21. The court reasoned that
‘‘[b]ecause the judges of our Superior Court do not have
a collective consciousness, Judge Schuman’s conclu-
sion as to what Judge Espinosa would have done in a
circumstance that she never contemplated would not
have been an exercise of discretion, but a legal fic-
tion.’’7 Id.
In considering whether Judge Schuman had con-
ducted a ‘‘meaningful,’’ and therefore permissible, retro-
spective competency hearing, the Appellate Court
defined a meaningful hearing as one in which ‘‘the state
of the record, together with such additional evidence
as may be relevant and available, permits an accurate
assessment of the defendant’s condition at the time of
the original . . . proceedings.’’ (Internal quotation
marks omitted.) Id., 804. The Appellate Court explained
that the ‘‘primary object’’ of its inquiry into whether the
defendant had received a meaningful hearing was ‘‘to
determine whether the quantity and quality of the evi-
dence would have permitted the court on remand to
reliably reconstruct the defendant’s competency at the
time of trial.’’ Id., 805.
The Appellate Court then proceeded to analyze
whether the remand hearing had been meaningful by
applying a four factor test often used by federal courts
to determine whether a nunc pro tunc hearing to deter-
mine a defendant’s competency to stand trial is mean-
ingful. Id., 804–805. Specifically, the Appellate Court
considered: (1) the amount of time that had elapsed
between the defendant’s trial and the competency deter-
mination; (2) the availability of medical evidence that
was contemporaneous with the trial; (3) statements by
the defendant in the trial record; and (4) the availability
of individuals who were in a position to interact with
the defendant before and during trial. Id. Applying this
test, the court first noted that the competency determi-
nation occurred approximately six years after trial. Id.,
805. The court then effectively determined that the
defendant’s medical records were not reliable evidence
as to his competency to represent himself because they
were from a time period preceding his trial, they
included many illegible entries, and they contained
other entries using medical terminology that could not
be understood without the aid of expert testimony.8 Id.,
805–806. The court next determined that the defen-
dant’s statements at trial were ‘‘of minimal utility with-
out a proper understanding of [the defendant’s] mental
state at that time,’’ which it concluded could not have
been accurately assessed given the state of the contem-
poraneous medical evidence that was available to the
court. Id., 806–807. Insofar as some of the defendant’s
statements seemed to indicate that he may have been
competent to represent himself, the Appellate Court
reasoned that those statements could have been the
product of mental illness. Id., 807. Finally, the Appellate
Court determined that, although Judge Espinosa had
observed the defendant during the relevant time, her
‘‘live testimony would have been necessary insofar as
her affidavit set forth what we can characterize only
as conclusory statements regarding the defendant’s
ability to represent himself during trial . . . .’’ Id. The
court noted that Judge Espinosa’s affidavit had been
made without knowledge of the defendant’s subse-
quently admitted medical records and that her ultimate
opinion conflicted with her statements at trial regarding
the defendant’s competency.9 Id., 808–809. In balancing
these factors, the Appellate Court ultimately concluded
that the trial court had not conducted a meaningful
hearing. Id., 809–10.
From our review of this record, it is apparent that,
although the Appellate Court’s initial framing of the
issue—whether the trial court ‘‘improperly determined
that [the defendant] was competent to represent him-
self’’—was consistent with the parties’ dispute at its
broadest level; id., 795; its decision was based on an
issue that was not raised by the parties. The defendant
challenged the substantive basis of Judge Schuman’s
decision, claiming that certain evidence proved that he
was not competent to represent himself. By contrast,
the Appellate Court decided whether, in light of the
fact that Judge Espinosa had not presided over the
remand proceedings, any other trier of fact could have
made a determination regarding the defendant’s compe-
tency given the substantial amount of time that had
passed and the state of the record. The Appellate Court
effectively concluded that, although this court had
approved the making of a competency determination
on the basis of a review of the trial transcripts, oral
argument of the parties, and Judge Espinosa’s personal
observations, those same considerations constituted an
inadequate basis to afford the defendant a meaningful
competency hearing.
The defendant never questioned Judge Schuman’s
ability to make a competency determination, whether
because a significant amount of time had elapsed since
the defendant’s trial or because Judge Schuman had not
presided over that trial. The defendant never claimed,
either before the Appellate Court or the trial court, that
the evidence was insufficient or unreliable such that
Judge Schuman could not make a determination regard-
ing his competency. Indeed, the defendant conceded
that Judge Schuman properly could afford substantial
deference to Judge Espinosa’s conclusions in her affida-
vit, arguing only that the court should find the evidence
contained in the defendant’s medical records a more
compelling basis to reach a contrary conclusion. The
defendant did not, nor could he claim, that Judge Schu-
man improperly precluded him from introducing evi-
dence relevant to his competency. Therefore, any such
claims would have been waived by the defendant.
In other words, the parties focused exclusively on
whether the trial court properly determined that the
defendant was competent to represent himself on the
basis of the evidence properly before it, whereas the
Appellate Court analyzed as a threshold matter whether
the circumstances and evidence allowed the trial court
to make any competency determination at all.10
Although the Appellate Court considered the evidence
that the parties cited, it did so through the lens of
whether the evidence provided the defendant with a
meaningful hearing, not whether the trial court made
a proper determination on the basis of that evidence.
Indeed, the Appellate Court weighed this evidence
against the passage of time, a consideration that neither
party raised at any stage of the proceedings. We there-
fore are compelled to conclude that the Appellate Court
decided the appeal on the basis of an issue that it raised
sua sponte.
In light of this conclusion, we turn to the question
of whether the requirements for raising an unpreserved
issue sua sponte were satisfied. As previously noted,
we review the Appellate Court’s decision as to this
matter for an abuse of discretion. Blumberg, supra, 311
Conn. 167–68. Although the state contends that none
of the Blumberg requirements was satisfied, we focus
on two of them: (1) whether the parties were given an
opportunity to be heard on the issue; and (2) whether
there was unfair prejudice to the state, the party against
whom the issue was decided. Id., 128.
With respect to the opportunity to be heard, the
record reveals the following relevant facts. Prior to oral
argument, the Appellate Court did not order the parties
to file supplemental briefs on the question of whether
the defendant had been given a meaningful hearing.
The Appellate Court did not issue an order directing
the parties to be prepared to discuss that issue at oral
argument. The issue arose for the first time during the
state’s rebuttal argument through questions by the
Appellate Court panel. The panel questioned the state,
for example, on whether there had been any discussion
of making Judge Espinosa available for cross-examina-
tion and whether there had been any objection to the
manner in which her affidavit was received. The Appel-
late Court thereafter did not instruct the parties to file
supplemental briefs concerning these issues.
The court in Blumberg specifically phrased the
requirement that a party be heard on an issue as ‘‘an
opportunity . . . to be heard by way of supplemental
briefing . . . .’’ (Emphasis added.) Id., 161–62; see also
id., 157 n.26 (citing ‘‘the requirement that parties must
be given an opportunity to brief an issue that the
reviewing court has raised sua sponte’’). Our case law
also has established that if ‘‘the Appellate Court decides
to address an issue not previously raised or briefed, it
may do so only after requesting supplemental briefs
from the parties or allowing argument regarding that
issue.’’ State v. Dalzell, 282 Conn. 709, 715, 924 A.2d 809
(2007), overruled in part on other grounds by Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 162 n.34, 84 A.3d 840
(2014).
Consistent with this jurisprudence, this court, on
occasion, has issued orders instructing parties to be
prepared to discuss certain issues at oral argument
without ordering supplemental briefing on those issues.
See, e.g., Gould v. Freedom of Information Commis-
sion, 314 Conn. 802, 808 n.9, 104 A.3d 727 (2014)
(whether plaintiff was aggrieved); Lexington Ins. Co.
v. Lexington Healthcare Group, Inc., 311 Conn. 29, 35
n.6, 84 A.3d 1167 (2014) (whether jurisdiction existed
for cross appeal); Broadnax v. New Haven, 284 Conn.
237, 240 n.4, 932 A.2d 1063 (2007) (whether final judg-
ment existed); Board of Education v. Nonnewaug
Teachers’ Assn., 273 Conn. 28, 31, 866 A.2d 1252 (2005)
(impact of recently issued decision). Principally, this
court has used this procedure when a jurisdictional
concern comes to this court’s attention after the parties
have filed their briefs, which is a matter that the court
is required to address even if not raised by the parties.
Blumberg, supra, 311 Conn. 128.
Thus, it is clear that, at a minimum, the parties must
be provided sufficient notice that the court intends to
consider an issue. It is implicit that an opportunity to
be heard must be a meaningful opportunity, in order
to satisfy concerns of fundamental fairness. See id., 156
n.24 (‘‘[f]undamental fairness dictates that a party must
be afforded the opportunity to address an unpreserved
claim on appeal’’). The parties must be allowed time
to review the record with that issue in mind, to conduct
research, and to prepare a response. A meaningful
opportunity is not provided when a party is asked a
question about a different claim, not previously raised,
for the first time at oral argument. Moreover, the Appel-
late Court’s questions in the present case did not make
clear that it intended to decide whether a retrospective
competency proceeding was permissible and that it
would make such a determination under a test that had
not been raised in the briefs of either party. Accordingly,
the Appellate Court failed to provide the state with an
opportunity to be heard on the dispositive issue.
If the absence of such an opportunity was the only
concern in the present case, we could remand the case
to the Appellate Court to afford the parties that opportu-
nity. See, e.g., Haynes v. Middletown, 306 Conn. 471,
475, 50 A.3d 880 (2012). The state also contends, how-
ever, that it was unfairly prejudiced by the fact that
this issue was never raised before the trial court. The
state argues that it would have proceeded differently
had the defendant objected to the procedure used by
Judge Schuman. Specifically, the state contends, if the
defendant had objected to having any judge other than
Judge Espinosa conduct the remand proceedings, it
would not have objected to Judge Espinosa11 conduct-
ing the proceedings or would have actively sought to
have her do so.12
Unfair prejudice may be found ‘‘when a party demon-
strates that it would have presented additional evidence
or that it otherwise would have proceeded differently
if the claim had been raised at trial. . . . Moreover,
because it may be difficult for a party to prove defini-
tively that it would have proceeded in a different man-
ner and, as a result, would suffer unfair prejudice if the
reviewing court were to consider the unpreserved issue,
once that party makes a colorable claim of such preju-
dice, the burden shifts to the other party to establish
that the first party will not be prejudiced by the
reviewing court’s consideration of the issue.’’ (Citations
omitted.) Blumberg, supra, 311 Conn. 156–57.
In the present case, the state has made a colorable
claim that it was unfairly prejudiced. Had the state
known that it should have sought to have Judge
Espinosa preside over the remand proceedings, it
thereby could have alleviated the Appellate Court’s con-
cerns regarding the substance of her affidavit. General
Statutes § 51-197c (f) provides a mechanism that would
have allowed Judge Espinosa to preside over the
remand proceedings notwithstanding her elevation to
the Appellate Court. Section 51-197c (f) allows Appel-
late Court judges to preside over trial court matters
with the permission of the Chief Justice of the Supreme
Court when ‘‘the public business may require it.’’13
The defendant has failed to advance any argument
as to why the state could not have sought to have Judge
Espinosa preside over the proceedings or why such
an attempt would have been futile. The defendant has
accordingly failed to meet his burden to overcome the
presumption that the state was unfairly prejudiced. We
conclude, therefore, that the Appellate Court abused
its discretion by deciding the appeal on the basis of an
unpreserved issue because the requirements articulated
in Blumberg were not met.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
consider the claim raised by the defendant in his appeal
to that court.
In this opinion the other justices concurred.
1
The charges included kidnapping in the first degree, robbery in the third
degree, robbery involving an occupied motor vehicle, larceny in the third
degree, and stalking in the first degree. See State v. Connor, supra, 292
Conn. 486, 503.
2
On March 16, 2011, Judge Espinosa was sworn in as a judge of the
Appellate Court. On March 6, 2013, she was sworn in as an Associate Justice
of the Supreme Court. Because this appeal involves matters that occurred
before Justice Espinosa’s appointment to the Supreme Court, and for clarity,
we refer to Justice Espinosa as Judge Espinosa in this opinion.
3
The timing and process whereby Judge Espinosa’s affidavit was actually
entered as a court exhibit is not clear from the record.
4
Although the defendant’s brief to this court argues to the contrary, at
oral argument he conceded that no objection had been made to Judge
Schuman presiding over the proceedings.
5
Judge Bear issued a separate opinion concurring in part and dissenting
in part, in which he primarily took issue with the majority’s conclusion that
Judge Espinosa could not conduct another remand proceeding because she
had made herself a material witness and, therefore, the proper remedy was
a new trial. State v. Connor, supra, 152 Conn. App. 817, 827–29.
6
Nunc pro tunc means ‘‘now for then’’ and is used, inter alia, to refer to
competency determinations made after the time at which the underlying
proceeding took place, in the present case, the defendant’s criminal trial.
State v. Connor, supra, 152 Conn. App. 799–800; see also Black’s Law Diction-
ary (10th Ed. 2014).
7
This fact rebukes the defendant’s claim that the Appellate Court reviewed
Judge Schuman’s decision under the abuse of discretion standard.
8
The Appellate Court nevertheless faulted the trial court for refusing to
give weight to the defendant’s medical records. State v. Connor, supra, 152
Conn. App. 793 n.11.
9
The Appellate Court noted: ‘‘[I]nsofar as [Judge Espinosa’s] affidavit
indicated that she believed the defendant was capable of carrying out the
basic tasks needed to present his own defense without counsel, the trial
transcript offers a conflicting statement: ‘[If] you represent yourself, you’re
not going to walk out of here free, I can tell you that. Because you are not
capable, you think you are, you think you know what you’re doing, but
you’re not.’ ’’ (Emphasis in original.) State v. Connor, supra, 152 Conn.
App. 808–809. Contrary to the Appellate Court, we believe that the latter
statement, read in proper context, indicates that Judge Espinosa was warn-
ing the defendant that he lacked the skills to successfully represent himself.
See State v. Connor, supra, 292 Conn. 529–30 (‘‘We emphasize that the issue
to be decided on remand is not whether the defendant lacked the technical
legal skill or knowledge to conduct the trial proceedings effectively without
counsel. Indeed, it appears quite clear that he did lack such skill or knowl-
edge. That fact, however, has no bearing on whether he was competent to
represent himself for purposes of Edwards. Rather, the determination of
his competence or lack thereof must be predicated solely on his ability to
‘carry out the basic tasks needed to present his own defense without the
help of counsel’ . . . notwithstanding any mental incapacity or impairment
serious enough to call that ability into question.’’ [Citation omitted.]).
10
We acknowledge that the Appellate Court varyingly framed the issue
before it, making it difficult to characterize with precision the ultimate issue
on which it based its decision. For example, it initially framed the issue as
whether the hearing was meaningful, but later characterized the trial court’s
error as having ‘‘fail[ed] to resolve the doubt as to the defendant’s compe-
tency.’’ (Emphasis in original.) State v. Connor, supra, 152 Conn. App. 814.
The parties agreed, however, that the trial court had resolved that doubt,
but took different positions as to whether the court’s resolution was the
correct one. Thus, irrespective of how it framed the issue, the Appellate
Court decided that some procedural flaw rendered the judgment improper.
The Appellate Court did not simply decide the substantive issue raised by
the parties under plenary review, rather than the abuse of discretion standard
sought by the parties.
11
The justices of the Supreme Court and the judges of the Appellate Court
are also judges of the Superior Court. General Statutes §§ 51-198 (a), 51-
197c (a), and 51-165 (6).
12
The state also claims in its reply brief that, had it known that there was
a concern about the availability of individuals ‘‘who were in a position to
interact with the defendant before and during trial’’; State v. Connor, supra,
152 Conn. App. 805; it would have presented testimony from other persons
who had had such interactions, and it also would have joined in a request
of the defendant to have the remand hearing litigated before Judge Espinosa.
Although it is debatable whether this argument is sufficiently distinct from
the prejudice argument in the state’s main brief and thus should not be
considered; see State v. Jose G., 290 Conn. 331, 341 n.8, 963 A.2d 42 (2009)
(‘‘[i]t is a well established principle that arguments cannot be raised for the
first time in a reply brief’’ [internal quotation marks omitted]); we need
not resolve this question because the state’s principal prejudice argument
is sufficient.
13
The Appellate Court panel disagreed whether Judge Espinosa could
preside over the proceedings if it reversed the judgment rendered by Judge
Schuman because Judge Espinosa had filed an affidavit, thereby potentially
making herself a material witness. Compare State v. Connor, supra, 152
Conn. App. 812 n.26, with id., 828–29 (Bear, J., concurring and dissenting);
see also Code of Judicial Conduct, Rule 2.11 (a) (5) (C) (judge shall disqualify
himself or herself in any proceeding in which judge’s impartiality might
reasonably be questioned, including where judge ‘‘was a material witness
concerning the matter’’). The defendant does not argue that Judge Espinosa
could not have presided over the proceedings for this reason. Indeed, had
the defendant timely raised any of the concerns expressed by the Appellate
Court before Judge Schuman, these concerns arguably could have been
resolved before Judge Espinosa’s affidavit was admitted as a court exhibit.
See footnote 3 of this opinion.