State v. Hines , 165 Conn. App. 1 ( 2016 )

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STATE OF CONNECTICUT v. CRAIG HINES
(AC 38002)
Gruendel, Mullins and Mihalakos, Js.*
Argued December 2, 2015—officially released April 26, 2016
(Appeal from Superior Court, judicial district of New
Haven, Clifford, J. [determination defendant restored
to competency]; Vitale, J. [judgment])
Katherine C. Essington, for the appellant
(defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and John P. Doyle, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Craig Hines, was con-
victed, following a jury trial, of two counts of murder
in violation of General Statutes § 53a-54a (a) and one
count of carrying a pistol without a permit in violation
of General Statutes § 29-35 (a). On appeal, the defendant
claims that the court erred (1) in finding that he had
been restored to competency to stand trial and (2) in
removing him from the courtroom during jury selection.
We affirm the judgment of the trial court.
I
The defendant’s first claim is that the court abused
its discretion when it found at the second of two compe-
tency hearings that he had been restored to competency
to stand trial. He raises three principal issues with the
court’s competency determination. First, he argues that
the determination was unreasonable because he had not
received ‘‘treatment’’ after he initially had been found
incompetent by a prior judge. Second, he argues that
the court ‘‘should have made a further inquiry and/or
asked for a third expert opinion regarding [his] compe-
tency.’’ Third, he argues that the court ‘‘appeared to’’
have based its determination exclusively on the compe-
tency report prepared during his placement for inpa-
tient treatment for the purpose of restoring him to
competency. We disagree.
The following history of the proceedings illuminates
our consideration of this claim. On September 27, 2013,
defense counsel moved pursuant to General Statutes
§ 54-56d1 for a competency evaluation because the
defendant recently had been evaluated by Allison
Downer, the head psychiatrist at the Department of
Correction, who had prescribed the defendant an anti-
psychotic drug to lessen his preoccupation with physi-
cal complaints resulting from a bat bite he allegedly
suffered while in federal custody.2 Defense counsel
expressed concern that this preoccupation would
impair the defendant’s competency to stand trial. The
court, Vitale, J., ordered that the defendant undergo a
competency evaluation.
Pursuant to the court’s order, John Bonetti, a psychia-
trist, conducted a competency evaluation of the defen-
dant, a report of which he prepared on October 4, 2013.
Bonetti reported that during the evaluation the defen-
dant complained of various pains and a chronic cough,
which he attributed to the alleged bat bite and for which
he claimed he had not received proper medical care;
the defendant’s fixation on his medical complaints pre-
vented him from focusing on the interview. Bonetti
reported that his review of the defendant’s medical
records, however, revealed no evidence of these con-
ditions.
While preparing the report, Bonetti spoke to Downer,
who confirmed the defendant’s fixation on the condi-
tions caused by the alleged bat bite and described the
defendant as ‘‘ ‘delusional at baseline.’ ’’ Likewise,
Bonetti noted that the defendant’s ‘‘delusional thinking
interfered with his ability to answer questions as it
permeated the entire interview.’’ Bonetti concluded that
the defendant was not competent to stand trial but that
there was a substantial probability that he could be
restored to competency by a sixty day inpatient psychi-
atric hospitalization.
Thereafter, on October 9, 2013, the court, O’Keefe,
J., held a competency hearing at which Bonetti testified.
Bonetti testified that the defendant’s psychiatric
records, in which ‘‘it was pretty consistently stated that
he carries a psychotic diagnosis, either schizophrenia
or a delusional disorder,’’ were significant to his conclu-
sion that the defendant was incompetent to stand trial.
On the basis of Bonetti’s report and testimony, the court
found that the defendant was incompetent to stand trial
but that there was a substantial probability that he could
be restored to competency within sixty days, and the
court ordered that he receive inpatient treatment at
Connecticut Valley Hospital, Whiting Forensic Division
(Whiting) for the purpose of restoring him to com-
petency.
At Whiting, Susan McKinley, a licensed clinical social
worker, conducted a second competency evaluation
and prepared a report of that evaluation dated Decem-
ber 4, 2013. The second competency report disclosed
the following. Neither a physical examination, which
was performed on the defendant upon admission, nor
blood tests revealed any medical problems that required
additional testing or intervention. Nevertheless, the
defendant reported that he was in a great deal of pain
and complained of a sore throat, difficulty swallowing,
‘‘ ‘tissue decay,’ ’’ spinal pain, and problems with his
esophagus, spleen, and pancreas. The defendant alter-
nately attributed these complaints to the bat bite and
to his food allegedly having been tampered with.
The report also disclosed that the defendant generally
refused to attend therapeutic and competency educa-
tion group meetings at Whiting, consistently main-
taining that he was competent to stand trial and that
his problems were exclusively physical. At meal times,
he was observed eating with enjoyment and without
difficulty. In his free time, he played games, socialized
with other patients, and engaged in long telephone con-
versations with family and friends. He also lifted
weights and engaged in vigorous exercise.
In conducting the second competency evaluation,
evaluators3 began conducting psychological testing of
the defendant but stopped before completion because
of his ‘‘performance and invalid response style.’’ Specifi-
cally, they noted that his performance on tests was
inconsistent, and he ‘‘endorsed a high proportion of
unusual symptoms that are not seen in patients with
genuine psychiatric illnesses,’’ both of which suggested
to evaluators that he may intentionally have been per-
forming poorly. Evaluators diagnosed the defendant
with malingering and antisocial personality disorder.
Although the defendant previously had been diag-
nosed as psychotic, in the second competency report
evaluators attributed his behavior to his personality and
concluded that there was no indication of a psychiatric
disorder, mood disturbance, or cognitive limitation that
would prevent him from understanding or emotionally
withstanding future court proceedings. They deemed
the defendant ‘‘capable of engaging in rational, appro-
priate, and focused discussions when he chooses to
do so,’’ and characterized his behavior as ‘‘a willful,
deliberate effort to portray himself as seriously ill in
an effort to thwart the judicial system.’’ Accordingly,
evaluators recommended that the court find the defen-
dant competent to stand trial.
On December 10, 2013, the court, Clifford, J., held
a hearing to determine whether the defendant had been
restored to competency. McKinley, who was the only
witness at the hearing, testified regarding the procedure
that staff followed during the defendant’s placement at
Whiting. She testified that ‘‘[we] evaluated any issues
that we thought were pertinent, we’re interested in pro-
viding any interventions that may be necessary, medi-
cal, psychiatric or otherwise, and so on a day-to-day
basis we evaluate[d] [his] needs . . . .’’ As noted in the
report, McKinley testified that ‘‘[the defendant] tended
to avoid the competency education groups and some
of the therapeutic groups that were offered, but he was
also able to participate in a variety of other activities
of his choosing. We certainly can’t make anyone do
anything that they’re interested in declining . . . .’’
With regard to the process by which evaluators deter-
mined that the defendant had been restored to compe-
tency, McKinley acknowledged that the defendant had
refused to cooperate with attempts to ask him standard-
ized questions for determining competency, as a result
of which the finding of competency was based on
‘‘observations on a day-to-day basis with the individual,
interactions with [the defendant], information from
staff on all shifts, and we completed—or attempted to
complete—some psychological testing as well.’’
According to McKinley, evaluators accepted the validity
of the defendant’s prior diagnoses with paranoid schizo-
phrenia, which, she acknowledged, is a permanent ill-
ness. On the basis of their own observations and
evaluation, however, evaluators unanimously rejected
schizophrenia as a diagnosis of the defendant’s cur-
rent condition.4
On cross-examination, the prosecutor asked McKin-
ley to comment on the defendant’s current behavior in
the courtroom. The prosecutor asked, ‘‘would you agree
with me that the moment I got up to start asking you
questions [the defendant] started coughing; is that cor-
rect?’’ McKinley replied, ‘‘I heard him clearing his throat.
Yes.’’5 McKinley also testified that the defendant’s
coughing in the courtroom ‘‘[was] out of the ordinary
from what [she had] known,’’ and ‘‘[i]n general at Whit-
ing [the defendant] appeared to be in excellent health
and we saw no indication that he was suffering from
any illness.’’
At the conclusion of McKinley’s testimony, the court
invited counsel to present arguments. Defense counsel
commented that ‘‘[i]t’s unique I think to find so many
schizophrenic diagnoses, which are permanent and not
transient, and then to not have that at all,’’ but did not
argue that the defendant was incompetent, leaving that
determination to the court’s discretion. The prosecutor,
in arguing that the defendant had been restored to com-
petency, emphasized that ‘‘there was not one throat
clear, not one nose blow, not one cough up until the
point that the state got up and started asking [McKinley]
questions . . . and it kind of got stronger and louder
as we got toward the end.’’
The court concluded that the defendant had been
restored to competency.6 The court and the defendant
then engaged in a lengthy colloquy. The defendant
recited a litany of physical complaints and expressed
frustration over what he perceived to be two years of
inadequate medical treatment by the Department of
Correction. The court responded that it would indicate
the defendant’s request for medical attention on the
mittimus.
After a trial to a jury, the defendant was convicted
of all charges and sentenced to a total effective sentence
of 125 years imprisonment. This appeal followed.
We begin our discussion with the well settled rule
that ‘‘[t]he conviction of an accused person who is not
legally competent to stand trial violates the due process
of law guaranteed by the state and federal constitutions.
. . . This rule imposes a constitutional obligation, [on
the trial court], to undertake an independent judicial
inquiry, in appropriate circumstances, into a defen-
dant’s competency to stand trial . . . . [Section] 54-
56d (a) codified this constitutional mandate, providing
in relevant part: A defendant shall not be tried, con-
victed or sentenced while the defendant is not compe-
tent. [A] defendant is not competent if the defendant
is unable to understand the proceedings against him or
her or to assist in his or her own defense.
‘‘This statutory definition mirrors the federal compe-
tency standard enunciated in Dusky v. United States,
362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per
curiam). According to Dusky, the test for competency
must be whether [the defendant] has sufficient present
ability to consult with his lawyer with a reasonable
degree of rational understanding—and whether he has
a rational as well as factual understanding of the pro-
ceedings against him.’’ (Internal quotation marks omit-
ted.) State v. Jordan, 151 Conn. App. 1, 30–31, 92 A.3d
1032, cert. denied, 314 Conn. 909, 100 A.3d 402 (2014).
‘‘We review the court’s determination of competency
under an abuse of discretion standard. . . . In
determining whether the trial court [has] abused its
discretion, this court must make every reasonable pre-
sumption in favor of [the correctness of] its action. . . .
Our review of a trial court’s exercise of the legal discre-
tion vested in it is limited to the questions of whether
the trial court correctly applied the law and could rea-
sonably have reached the conclusion that it did.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Paulino, 127 Conn. App. 51, 61–62, 12 A.3d 628 (2011).
Several principles guide our determination of
whether the court’s conclusion that the defendant had
been restored to competency was reasonable. First,
‘‘[t]he trial judge is in a particularly advantageous posi-
tion to observe a defendant’s conduct during a trial
and has a unique opportunity to assess a defendant’s
competency. A trial court’s opinion, therefore, of the
competency of a defendant is highly significant.’’ (Inter-
nal quotation marks omitted.) State v. Connor, 292
Conn. 483, 523–24, 973 A.2d 627 (2009). Second, ‘‘[the]
court is entitled to consider trial counsel’s assertions
that his client is competent’’; State v. Paulino, supra, 127
Conn. App. 65; but ‘‘need not accept counsel’s opinion
without question.’’ (Internal quotation marks omitted.)
State v. Crawley, 138 Conn. App. 124, 141, 50 A.3d 349,
cert. denied, 307 Conn. 925, 55 A.3d 565 (2012). Third
and finally, ‘‘a trial court is [not] required to canvass
the defendant personally as part of its independent
inquiry into his competency to stand trial.’’ State v.
Jordan, supra, 151 Conn. App. 36. With these principles
in mind, we turn to the defendant’s specific arguments.
A
The defendant first argues that the court erroneously
found that he had been restored to competency because
he ‘‘had been previously found incompetent by a differ-
ent judge . . . and he was not treated for his mental
illness during the intervening period.’’ Instead of treat-
ing his mental illness, he argues, ‘‘McKinley’s team
merely conducted a second competency evaluation.’’
The state counters that this argument fails because § 54-
56d does not prescribe the type of treatment that a
defendant must receive before a judge may find that
he has been restored to competency. We agree with
the state.
The defendant’s claim, that a court’s inquiry into
whether a defendant previously found incompetent has
been restored to competency is controlled by the type
of treatment he has received in the interim, finds no
support in the relevant statutes or case law. The stan-
dard to be applied by a trial court determining a defen-
dant’s competency is the same regardless of whether
the defendant was previously found incompetent. See,
e.g., State v. Edwards, 158 Conn. App. 119, 134–37, 118
A.3d 615, cert. denied, 318 Conn. 906, 122 A.3d 634(2015); State v. Bigelow, 120 Conn. App. 632, 638, 643–
44, 994 A.2d 204, cert. denied, 297 Conn. 916, 996 A.2d
278 (2010). As previously noted, this standard directs
the court to determine only whether the defendant is
capable of understanding the proceedings against him
and assisting with his own defense. State v. Jordan,
supra, 151 Conn. App. 30–31.
In arguing that he did not receive that ‘‘treatment’’
on which a finding of restoration to competency must
be predicated, the defendant cites, without analysis,
various portions of § 54-56d referring to ‘‘treatment.’’
None of these provisions, however, prescribes the type
of treatment that a defendant must receive, let alone
requires a court to determine whether a course of treat-
ment is adequate, before a court properly may find
that he has been restored to competency. See General
Statutes § 54-56d (h) (1) (A) (directing court, on finding
substantial probability that presently incompetent
defendant may be restored to competency, to ‘‘[place]
. . . the defendant for treatment for the purpose of
rendering the defendant competent’’); General Statutes
§ 54-56d (k) (directing court to hold hearing after receiv-
ing report and to ‘‘determine whether the defendant
is competent or is making progress toward attaining
competency within the period covered by the placement
order’’); General Statutes § 54-56d (j) (permitting but
not requiring court to request that competency report
contain information regarding method of treatment). If
the legislature had intended to require the court to
inquire into the adequacy of the treatment received,
it could have done so. Presented with this legislative
omission, it is not a court’s role to engraft language onto
the statute to require such an inquiry. See McCullough v.
Swan Engraving, Inc., 320 Conn. 299, 309, 130 A.3d
231 (2016).
On the basis of the foregoing authority, the court did
not abuse its discretion when it concluded, without
evaluating whether the defendant underwent a particu-
lar course of treatment at Whiting, that the defendant
was capable of understanding the proceedings against
him and assisting with his own defense. State v. Jordan,
supra, 151 Conn. App. 30–31; see State v. Edwards,
supra, 158 Conn. App. 125 (noting that competency
report and testimony indicated that defendant’s
attending psychiatrist did not make specific diagnosis
or administer medication during inpatient treatment
because defendant exhibited no sign of psychotic disor-
der, and that disruptive behavior was result of choice).
B
Second, the defendant argues that ‘‘[i]nstead of
merely accepting the conclusions of the second compe-
tency report, Judge Clifford should have made a further
inquiry and/or asked for a third expert opinion regarding
[the defendant’s] competency’’ for two reasons: (1) the
report’s reliability was questionable because the ‘‘con-
clusion [therein] that [the defendant] was not suffering
from a major mental illness was so contrary to [prior]
conclusion[s] reached by Dr. Bonetti, Dr. Downer . . .
and [others]’’; and (2) the report was internally inconsis-
tent because it reported that the defendant was
obsessed with his medical condition yet concluded that
his physical complaints did not prevent him from engag-
ing in reasonable discussions. We disagree.
‘‘It is constitutionally permissible for the burden to be
placed on the defendant to prove, by a preponderance of
the evidence, that he is incompetent . . . .’’ State v.
Dort, 315 Conn. 151, 162, 106 A.3d 277 (2014). Accord-
ingly, ‘‘[o]nce the court grants a motion for a compe-
tency examination, the burden rests on the [defendant
as] moving party to prove that [he] is not competent
. . . .’’ (Internal quotation marks omitted.) State v.
Johnson, 253 Conn. 1, 23, 751 A.2d 298 (2000); see
General Statutes § 54-56d (b). The burden remains on
the defendant, as the moving party, to prove that he
has not been restored to competency. See, e.g., State v.
Bigelow, supra, 120 Conn. App. 643. At the competency
hearing, ‘‘[t]he court may call its own witnesses and
conduct its own inquiry.’’ (Emphasis added.) General
Statutes § 54-56d (b). The court is equally free, however,
to decide the issue of competency solely on the basis
of the evidence presented by the parties. See General
Statutes § 54-56d (b).
In the present case, the court was not required to
seek out additional evidence to resolve either of the
inconsistencies the defendant cites before determining
that he had been restored to competency. The burden
was on the defendant to prove that he still was incompe-
tent. At the second competency hearing, the court heard
extensive testimony from McKinley with regard to why
her team concluded in the second competency report
that the defendant did not suffer from a psychiatric
affliction. The defendant did not present evidence, apart
from the first competency report, to rebut either that
conclusion7 or the diagnosis of malingering.
The court also had before it the evaluators’ conclu-
sion that the defendant was ‘‘capable of engaging in
rational, appropriate, and focused discussions when he
chooses to do so’’ and that his behavior was ‘‘a willful,
deliberate effort to portray himself as seriously ill in
an effort to thwart the judicial system.’’ Defense counsel
elected not to challenge McKinley with regard to how
the defendant reportedly could engage in such rational
discussions despite his obsession with his medical con-
ditions. The court was entitled to rely on the foregoing
evidence in the record, which supported its conclusion
that the defendant was capable of understanding the
proceedings against him and assisting with his own
defense. Accordingly, we conclude that the court cor-
rectly applied the law and that its finding of competency
based on the second competency report and McKinley’s
testimony was reasonable.
C
Third and finally, the defendant argues that the court
abused its discretion when it ‘‘appeared to’’ base its
competency finding exclusively on the second compe-
tency report even though it should have (1) reviewed
the first competency report and transcripts of the defen-
dant’s prior court appearances, (2) elicited defense
counsel’s opinion as to whether the defendant had a
rational understanding of the case and could assist in
his defense, and (3) canvassed the defendant or taken
into account personal observations of his courtroom
behavior. We are not persuaded.
We again note that the applicable standard of review
limits us to determining ‘‘whether the trial court cor-
rectly applied the law and could reasonably have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) State v. Paulino, supra, 127 Conn. App.
62. As our discussion of the defendant’s prior arguments
makes clear, the record satisfies us that the court rea-
sonably concluded, on the basis of a proper application
of the law, that the defendant had been restored to
competency. In any event, both the record and the appli-
cable legal principles establish that the court acted
properly.8 First, defense counsel explicitly chose to
leave the determination of competency to the court’s
discretion, pointing out only that ‘‘[i]t’s unique, I think,
to find so many schizophrenic diagnoses, which are
permanent and not transient, and then to not have that
at all.’’ Even if defense counsel had asserted that the
defendant was still incompetent, the court was free to
accept or reject that opinion. State v. Crawley, supra,
138 Conn. App. 140–41; State v. Paulino, supra, 127
Conn. App. 64–65.
Second, although the court did not canvass the defen-
dant before deciding that he had been restored to com-
petency, ‘‘a trial court is [not] required to canvass the
defendant personally as part of its independent inquiry
into his competency to stand trial.’’ State v. Jordan,
supra, 151 Conn. App. 36. The court was at liberty to
take into account the defendant’s behavior during the
competency hearing, which, the record indicates, was
consistent with the evaluators’ conclusion that he was
wilfully trying to thwart the judicial process. The prose-
cutor specifically drew the court’s attention to this
behavior by asking McKinley to confirm his observation
that the defendant appeared to have timed a coughing
fit to coincide with the beginning of cross-examination.
McKinley did so, and she also confirmed that such con-
duct was consistent with at least one prior occasion
on which the defendant apparently timed a coughing
fit deliberately. See footnote 5 of this opinion. The court
also personally observed the defendant’s behavior dur-
ing a lengthy conversation with the defendant at the
conclusion of the hearing. Counsel for the defendant
did not ask the court to reconsider its ruling on the
basis of that exchange.
For the foregoing reasons, we conclude that the trial
court properly exercised its discretion in determining
that the defendant had been restored to competency.
II
The defendant’s second claim is that the trial court
erred by removing him from the courtroom during jury
selection. This claim is threefold. First, he contends
that because he was unable to control the behavior that
led to his removal, he did not knowingly and intelli-
gently waive his constitutional right to be present for
jury selection. Second and relatedly, he contends that
on the basis of this behavior, the court should have
ordered, sua sponte, another competency evaluation.
Finally, he contends that instead of placing him in the
courthouse lockup, the court should have placed him
in a conference room adjoining the courtroom or contin-
ued the proceedings to fashion a better accommoda-
tion. We are not persuaded.
The following history of the jury selection process
is relevant to this claim. On January 27, 2014, the court,
Vitale, J., stated to defense counsel that ‘‘I’ve been
patient to this point, but my patience will have its limits
at some point regarding your client’s conduct.’’9 On
January 29, 2014, the court told defense counsel that
‘‘if [the defendant’s behavior] becomes disruptive, and
it’s approaching that now, if it continues then the court
is going to have to unfortunately take action which
I don’t want to do. But, I’m not going to allow the
proceedings to be disrupted by those types of sounds
based on what I’ve seen happen before during some
preliminary hearings and the [second competency
report]. So that’s a choice he’ll have to make.’’
At the conclusion of that day’s proceedings, the court
made a record of the defendant’s behavior ‘‘in the event
[that] other actions are going to be required.’’10 Then,
after noting that it previously had admonished the
defendant to refrain from such behavior, the court
observed that he had ‘‘managed to stop during my
lengthy indoctrination to the jury this morning, during
his lawyer’s remarks, during [the prosecutor’s] remarks,
demonstrating, obviously, he can stop if he chooses to,
and he has engaged in this behavior on the record before
me prior to the court ordering a competency exam. And
obviously the court and counsel are both familiar with
the results of the competency exam by Whiting dated
December 4, 2013, which makes it abundantly clear
that there is no medical or psychiatric reason for this
behavior, that he’s in complete control of his behavior,
and that there’s no psychiatric or medical impairment
that would cause this conduct other than a direct effort
on his part to attempt to disrupt the proceedings, and
it’s beyond simply clearing his throat.’’ Defense counsel
acquiesced to the court’s characterization of the defen-
dant’s behavior without objection and urged the defen-
dant to behave appropriately.
On January 31, 2014, the court announced that it
would ‘‘need to address’’ the defendant regarding his
continued disruptive behavior because its prior admoni-
tions had been in vain. Defense counsel requested, in
the absence of a ‘‘place, as there are in other courts,
where he could be able to hear things that are going
on but other people could not hear him,’’ that the defen-
dant be placed in a conference room adjoining the court-
room instead of in the courthouse lockup. The court
denied the request because the conference room was
not sufficiently secure.11 Defense counsel objected to
the defendant being placed in the lockup.
The court then canvassed the defendant to determine
whether he understood that his conduct could result
in a waiver of his constitutional right to be present for
jury selection. In response, the defendant once again
complained of an inability to obtain proper treatment
for his numerous medical complaints. The court replied
that it had attempted to address those complaints, that
the second competency report indicated that the defen-
dant could choose to control his behavior, and that,
already having warned the defendant, the court would
no longer tolerate the behavior.
The court ordered that the defendant be taken to the
lockup after again noting that the adjoining conference
room was insufficiently secure, advising the defendant
that it would permit him to return to the courtroom
upon request and with appropriate assurances that he
would abstain from further disruptive behavior.
Defense counsel asked for permission to consult with
the defendant in the lockup before picking any other
juror. The court indicated that it would deny the request
unless defense counsel could produce legal authority
for granting it.12 Finally, the court instructed defense
counsel to ask the defendant during the upcoming lun-
cheon recess whether he wished to return to the
courtroom.
After the luncheon recess, defense counsel reported
that the defendant had declined to return to the court-
room. The court recessed briefly so that defense coun-
sel once again could invite the defendant to return;
again, the defendant declined the invitation.
On that day, two jurors were selected in the defen-
dant’s absence. Before selecting one juror, defense
counsel asked to consult with the defendant in the
lockup. The court denied the request, noting that the
defendant had ‘‘waived his presence by his conduct.’’
When jury selection resumed on February 3, 2014,
the defendant was present.13 Jury selection concluded
without recorded incident.
‘‘We begin with a fundamental tenet of criminal juris-
prudence: a criminal defendant has a constitutional
right to be present at all critical stages of his or her
prosecution. Rushen v. Spain, 464 U.S. 114, 117, 104 S.
Ct. 453, 78 L. Ed. 2d 267 (1983) (right to personal pres-
ence at all critical stages of the trial and the right to
counsel are fundamental rights of each criminal defen-
dant). . . . Although the constitutional right to be pre-
sent is rooted to a large extent in the confrontation
clause of the sixth amendment, courts have recognized
that this right is protected by the due process clause
in situations [in which] the defendant is not actually
confronting witnesses or evidence against him. Snyder
v. Massachusetts, 291 U.S. 97, 105–106, 108, 54 S. Ct.
330, 78 L. Ed. 674 (1934); see State v. Jarzbek, 204 Conn.
683, 691–92, 529 A.2d 1245 (1987) (recognizing that right
to be present similarly is guaranteed by article first,
§ 8, of our state constitution), cert. denied, 484 U.S.
1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).’’ (Citation
omitted; internal quotation marks omitted.) State v.
Edwards, supra, 158 Conn. App. 138.
‘‘[A trial] court may infer the defendant’s waiver [of
the right to be present] from the totality of his acts and
conduct, so long as the defendant has been adequately
informed that the trial would continue in his absence.’’
State v. Gonzalez, 205 Conn. 673, 689, 535 A.2d 345(1987). ‘‘The [United States] Supreme Court [in Illinois
v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed 2d
353 (1970)] opined that [a]lthough mindful that courts
must indulge every reasonable presumption against the
loss of constitutional rights . . . a defendant can lose
his right to be present at trial if, after he has been
warned by the judge that he will be removed if he
continues his disruptive behavior, he nevertheless
insists on conducting himself in a manner so disorderly,
disruptive, and disrespectful of the court that his trial
cannot be carried on with him in the courtroom. . . .
The defendant may reclaim his constitutional right to be
present if he demonstrates that he is willing to conduct
himself consistently with the decorum and respect
inherent in the concept of courts and judicial proceed-
ings.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Edwards, supra, 158 Conn. App. 140; see
Practice Book § 42-47.14
‘‘[T]he trial court has broad discretion in determining
whether the removal of an accused from the courtroom
is an appropriate measure in light of the nature and
severity of the improper conduct.’’ State v. Jones, 281
Conn. 613, 637, 916 A.2d 17, cert. denied, 552 U.S. 868,
128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). ‘‘Our appellate
decisions illustrate the type of conduct that has been
deemed to constitute valid waivers of the right to be
present at a critical stage of the prosecution. See . . .
State v. Gonzalez, [supra, 205 Conn. 689] (defendant
forfeited right to be present by acting in bizarre and
disruptive manner); State v. Drakeford, 202 Conn. 75,
81, 519 A.2d 1194 (1987) (defendant who was removed
for interrupting voir dire, and then declined to return
when sheriff informed him he could do so, unequivo-
cally waived his right to attend jury selection).’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Edwards, supra, 158 Conn. App. 140–41.
Finally, ‘‘[o]nce the trial court determine[s] . . . that
the defendant [is] competent to stand trial, it [does]
not have a further obligation to inquire whether the
defendant’s forfeiture of his right to be present was the
result of incompetence . . . .’’ State v. Gonzalez,
supra, 205 Conn. 689. With these principles in mind, we
turn to the defendant’s specific arguments.
We consider together the defendant’s related argu-
ments (1) that because he was unable to control the
behavior that led to his removal, he did not knowingly
and intelligently waive his constitutional right to be
present for jury selection15 and (2) that on the basis of
this behavior, the court should have ordered, sua
sponte, another competency evaluation before
determining that he had waived his right to be present.
We disagree.
The court properly determined that the defendant
impliedly waived his right to be present by his disruptive
conduct. The record reveals that the court warned the
defendant not once but several times that jury selection
would continue in his absence if he did not conduct
himself appropriately. After each warning, the defen-
dant continued to engage in the same loud, distracting,
and offensive behavior. From his continued disruption
of the proceedings, the court permissibly inferred the
defendant’s waiver of his right to be present for jury
selection. See State v. Gonzalez, supra, 205 Conn.
689–90.
The court also was not required to order another
competency evaluation on the basis of the behavior
that led to the defendant’s exclusion from jury selection.
His behavior did not materially differ from the behavior
he exhibited before and during the prior determination
of competency—namely, his loud, suspiciously timed
coughing fits and associated insistence that he was
suffering from various untreated medical conditions.
‘‘When a court has previously found a defendant compe-
tent and that determination is premised on proper con-
sideration of the relevant factors, the court’s inquiry
when deciding whether to order another competency
evaluation is whether the defendant’s condition has
materially changed since [the] previous finding of com-
petency.’’ (Internal quotation marks omitted.) State v.
Edwards, supra, 158 Conn. App. 134.
As previously noted, when a court has determined
that a defendant is competent to stand trial, in the
absence of such a material change ‘‘it [does] not have
a further obligation to inquire whether the defendant’s
forfeiture of his right to be present was the result of
incompetence . . . .’’ State v. Gonzalez, supra, 205
Conn. 689; see also id., 687, 689 (court obligated to
inquire into defendant’s competency when informed
midtrial that defendant had been given antipsychotic
drug and attempted suicide but, having concluded that
defendant nevertheless was competent, court not
required to inquire into effect of antipsychotic drug on
defendant’s forfeiture of right to be present).
In the present case, the court’s conclusion that the
defendant had waived his right to be present was ‘‘based
on what [the court had] seen happen before during
some preliminary hearings and the [second competency
report]’’16 as well as its observations during jury selec-
tion. The court observed that the defendant refrained
from the disruptive conduct during its indoctrination
of the jury, ‘‘demonstrating [that] obviously he can stop
if he chooses to . . . .’’ On the basis of the defendant’s
behavior, which remained consistent throughout the
proceedings, the court concluded that ‘‘it [is] abun-
dantly clear that there is no medical or psychiatric rea-
son for this behavior, that he’s in complete control of
his behavior, and that there’s no psychiatric or medical
impairment that would cause this conduct other than
a direct effort on his part to attempt to disrupt the
proceedings . . . .’’ The defendant did not produce evi-
dence demonstrating that this pattern of behavior dif-
fered at all, let alone materially, from his conduct at
prior proceedings.17
We conclude that the court properly exercised its
discretion in declining to order another competency
evaluation on the basis of its independent inquiry into
the defendant’s competency. See State v. Edwards,
supra, 158 Conn. App. 137 (holding that court did not
abuse discretion in relying on observations, input, and
previous competency evaluation as bases for not order-
ing additional competency evaluation); State v. Jordan,
supra, 151 Conn. App. 37–38 (holding that failure to
order additional competency evaluation not abuse of
discretion where defendant did not produce evidence
that condition had changed since prior evaluation and
record supported court’s determination that defen-
dant’s behavior was attempt to disrupt proceedings);
State v. Johnson, 22 Conn. App. 477, 489, 578 A.2d 1085(defendant’s ‘‘obstreperous, uncooperative or belliger-
ent behavior did not obligate the court to order a compe-
tency examination’’ where defendant had ‘‘ability to
cooperate but did not want to do so’’), cert. denied, 216
Conn. 817, 580 A.2d 63 (1990).
We finally consider the defendant’s argument that
the court abused its discretion by placing him in the
courthouse lockup when he was removed from jury
selection. Specifically, he argues, the court erred ‘‘in
not placing [him] in the conference room because [it]
did not make a record as to why any security concerns
could not be addressed by the judicial marshals,’’ in
failing to explore all possible alternatives to placing
him in the lockup, such as using closed circuit televi-
sion, and in failing to continue the proceedings ‘‘until
a better accommodation could be made.’’ The court
compounded its error, he argues, by subsequently deny-
ing defense counsel’s request to consult with the defen-
dant before selecting jurors in his absence. We are
not persuaded.
‘‘[T]here are at least three constitutionally permissi-
ble ways for a trial judge to handle an obstreperous
defendant . . . (1) bind and gag him, thereby keeping
him present; (2) cite him for contempt; [or] (3) take
him out of the courtroom until he promises to conduct
himself properly.’’ Illinois v. Allen, supra, 397 U.S. 343–
44. Our rules of practice leave to the court’s discretion
the determination of where a defendant who has been
taken out of the courtroom shall be placed, provided
only that the defendant must remain in the building in
which the courthouse is located. See Practice Book
§ 42-47. ‘‘[T]he trial judge is best equipped to decide the
extent to which security measures should be adopted to
prevent disruption of the trial, harm to those in the
courtroom, escape of the accused, and the [commis-
sion] of other crimes . . . .’’ (Internal quotation marks
omitted.) Sekou v. Warden, 216 Conn. 678, 691–92, 583
A.2d 1277 (1990).
Although our appellate courts have viewed favorably
a court providing an accommodation by which a defen-
dant who has waived the right to be present may
observe the proceedings; see id., 696 (‘‘the court permit-
ted [the defendant] to choose between two equally per-
missible alternatives: presence under restraint, or
absence coupled with mechanical observation of the
proceedings’’); State v. Strich, 99 Conn. App. 611, 618–
19, 915 A.2d 891 (holding that where defendant placed
in holding cell equipped with speaker system, there was
‘‘no flaw, constitutional or otherwise’’ in trial court’s
removal of defendant from courtroom), cert. denied,
282 Conn. 907, 920 A.2d 310, cert. denied, 552 U.S. 901,
128 S. Ct. 225, 169 L. Ed. 2d 171 (2007); they have not
suggested that such means are constitutionally
required.
In the present case, the court properly exercised its
discretion in removing the defendant to the lockup once
it determined that the defendant had by his conduct
waived his right to be present for jury selection. Con-
trary to the defendant’s assertion that the court did not
make a record of its reason for removing him to the
lockup instead of to the conference room adjoining the
courtroom, the court expressly noted that the marshals
could not adequately secure the conference room,
which adjoined a public hallway and, therefore, was an
inappropriate place in the court’s opinion for a defen-
dant facing trial on allegations of murder. See footnote
11 of this opinion. The court was in the best position
to weigh the risks associated with placing the defendant
in the conference room. Having determined that placing
the defendant in the conference room would be impru-
dent, the court was permitted to place the defendant
in the courthouse lockup and was not required to delay
the proceedings until all possible alternatives could
be vetted.
Having waived his right to be present for jury selec-
tion and having been properly removed to the lockup,
the defendant was not entitled to confer with his attor-
ney before the subsequent selection of any juror.
Defense counsel did not provide the trial court with
any binding legal authority in support of his argument
that such consultation was required, nor has the defen-
dant provided any here.18 Also, the court twice dis-
patched defense counsel to the lockup to inquire
whether the defendant wished to return to the court-
room for jury selection. The defendant twice declined
the invitation to return. If the defendant had wanted to
confer with his counsel before any juror was selected,
he could have made the required assurances and
returned to the courtroom. ‘‘[N]o defendant has a unilat-
eral right to set the time or circumstances under which
he will be tried. . . . We cannot permit an accused to
elect to pursue one course at the trial and then . . .
to insist on appeal that the course which he rejected
at the trial be reopened to him . . . . [T]he protection
which could have been obtained was plainly waived
. . . . The court only followed the course which [the
defendant] himself helped to chart . . . .’’ (Citations
omitted; internal quotation marks omitted.) State v.
Drakeford, supra, 202 Conn. 80–81 (court did not err
in proceeding with jury selection after defendant volun-
tarily absented self).
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 54-56d provides in relevant part: ‘‘(b) A defendant is
presumed to be competent. The burden of proving that the defendant is not
competent by a preponderance of the evidence and the burden of going
forward with the evidence are on the party raising the issue. The burden
of going forward with the evidence shall be on the state if the court raises
the issue. The court may call its own witnesses and conduct its own inquiry.
‘‘(c) If, at any time during a criminal proceeding, it appears that the
defendant is not competent, counsel for the defendant or for the state, or
the court, on its own motion, may request an examination to determine the
defendant’s competency.
‘‘(d) If the court finds that the request for an examination is justified and
that . . . there is probable cause to believe that the defendant has commit-
ted the crime for which the defendant is charged, the court shall order an
examination of the defendant as to his or her competency. . . . [E]xaminers
shall prepare and sign . . . a written report and file such report with the
court . . . .’’
2
During the time he was in federal custody, the defendant claimed to
have been bitten by a bat and to have contracted rabies from that bite.
There never has been any medical confirmation of that claim. The defendant
currently is serving a sentence of twenty-six years and eight months on
unrelated federal charges.
3
The team of Whiting staff evaluating the defendant included McKinley,
Lori Calwell, a psychologist, and Steven Lazrove, a psychiatrist.
4
Defense counsel examined McKinley as follows:
‘‘Q. In [your] review of [the defendant’s] records [from the Federal Bureau
of Prisons] you found out his . . . diagnosis [was] schizophrenia paranoid
type . . . is that correct?
‘‘A. That is what they indicated in those records, yes.
‘‘Q. Do you have reason to doubt that diagnosis?
‘‘A. I was not part of those evaluations so we accept that information
as written.
‘‘Q. And schizophrenia paranoid type, is that a neurotic condition or
psychotic condition?
‘‘A. It’s a psychotic condition.
‘‘Q. And does that, can that condition be transient, come and go, or is it
a more permanent condition?
‘‘A. It is considered a permanent condition. . . .
‘‘Q. Okay. Fair enough. And in addition to that, you had the opportunity
to see the Connecticut Department of Correction records that indicated
diagnoses such as . . . schizophrenia with paranoid and somatic delusions.
Again, no reason to doubt those diagnoses either?
‘‘A. Again, those are the opinions of other evaluators and—and we accept
that information. . . .
‘‘Q. Okay. So can—is there any way that you can explain why other
professionals have found him consistently schizophrenic and you did not?
‘‘A. I certainly can’t give you any information about their assessment and
what they saw at the time. It is not unusual for different evaluators to
have varying opinions based on the presentation of the individual and the
circumstances . . . .’’
5
A related exchange between the prosecutor and McKinley was as follows:
‘‘Q. And at one point as well, and if you could clarify. Was there a point
in the observations by individuals employed by Whiting, is it a correct
statement, that at one point [the defendant] was in his particular unit or
his particular room, so to speak, and not coughing or complaining of any
discomfort until apparently staff were outside of his door and he noticed
that? . . .
‘‘A. There were records from the Department of Correction that noted a
similar circumstance.’’
6
The court stated the following: ‘‘I think it’s at least clear under the
presumption of competency, and even though there was a finding of incom-
petency based on what appears to be a detailed report that’s defense exhibit
one for purposes of the reconsideration of competency, and obviously from
the testimony of the witness, that I’m going to find that the defendant has
been restored to competency and is presently able to understand the nature
of the charges and does have the ability to assist counsel in his defense. I
am finding [this] based on the testimony and the exhibit and listening,
obviously, to the arguments of counsel that he is competent at this time to
stand trial.’’
7
Even if the Whiting evaluators had agreed with prior diagnoses of schizo-
phrenia, the defendant’s diagnosis with a mental illness alone would not
have disposed of the competency inquiry. ‘‘[C]ompetence to stand trial . . .
is not defined in terms of mental illness. An accused may be suffering from
a mental illness and nonetheless be able to understand the charges against
him and to assist in his own defense . . . .’’ (Internal quotation marks
omitted.) State v. Bigelow, supra, 120 Conn. App. 642–43.
8
As to the defendant’s claim that the court ignored the first competency
report, the record is somewhat ambiguous. Before the second report was
entered into evidence, the court stated that ‘‘[t]here has probably been a
previous report, so I don’t know how you want to mark this.’’ Later, the
court asked the courtroom clerk, ‘‘[d]o we have the reports too?’’ and the
clerk responded affirmatively.
Nevertheless, as we have discussed, the material findings of the first
report—namely, that the defendant had been diagnosed as schizophrenic
and delusional—were brought out during defense counsel’s examination of
McKinley at the second competency hearing. Additionally, the defendant
failed to file a motion for articulation to allow the court to clarify whether
it considered the first report. Accordingly, ‘‘[c]ognizant that we must make
every reasonable presumption in favor of the correctness of the court’s
decision . . . we are left to conclude on the basis of our review of the . . .
record provided that the court acted reasonably . . . .’’ Gordon v. Gordon,
148 Conn. App. 59, 67–68, 84 A.3d 923 (2014).
9
The court did not elaborate on the conduct to which it referred.
10
Accordingly, the court noted that the defendant had ‘‘loudly and exagger-
atedly inhaled through [his] nose summoning phlegm and nasal fluids and
then, having done so, loudly and exaggeratedly cleared his throat and then
loudly and exaggeratedly spit the contents into a cup which is at counsel
table.’’ The court characterized this behavior as ‘‘disgusting and disruptive.’’
11
The court described the conference room as ‘‘adjacent to the public
hallway, [which] I don’t believe is an appropriate place to place someone
who’s facing a trial on a murder allegation.’’
12
The record does not disclose that defense counsel ever produced
such authority.
13
Immediately after the start of the proceedings on that day, the prosecutor
noted that ‘‘just as I got up to address the court [the defendant] started
clearing his throat and making those sounds again with his throat, and
spitting into the cup . . . .’’ The court acknowledged the prosecutor’s obser-
vation but decided to proceed with the defendant present.
14
Practice Book § 42-47 provides: ‘‘Upon the direction of the judicial
authority, a defendant may be removed from the courtroom during trial or
hearing when the defendant’s conduct has become so disruptive that the
trial or hearing cannot proceed in an orderly manner. The judicial authority
shall advise the defendant that the trial or hearing will continue in the
defendant’s absence. A defendant who has been removed shall remain pre-
sent in the court building while the trial or hearing is in progress. At the
time of the defendant’s removal, the judicial authority shall advise the defen-
dant that the defendant may request to be returned to the courtroom if, at
the time of making such request, the defendant assures the judicial authority
that the defendant shall not engage in disruptive conduct. Whenever the
defendant is removed, the judicial authority shall instruct the jurors that
such removal is not to be considered in assessing the evidence or in the
determination of the case.’’
15
The defendant also argues that instead of removing him from the court-
room, Judge Vitale should have given him a cough drop, water, or a mask
of some kind, or ordered the courtroom microphones to be repositioned to
lessen the distraction caused by his noise. As support for this argument, he
cites an observation in the second competency report that throat lozenges
‘‘had a good effect’’ on him at Whiting, but he offers no legal authority for
the argument that the court was obligated to provide such accommodations
before concluding that he had waived his right to be present. We decline
to review this inadequately briefed argument. See, e.g., State v. Davis, 159
Conn. App. 618, 629 n.3, 123 A.3d 142 (‘‘[b]ecause the defendant has not
briefed this argument, we will not pass upon it’’), cert. denied, 319 Conn.
951, 125 A.3d 530 (2015).
16
There is no ‘‘bright line rule as to when a competency report becomes
stale.’’ (Internal quotation marks omitted.) State v. Jordan, supra, 151 Conn.
App. 37.
17
We disagree that the defendant’s repeated refusal to return from the
lockup should have alerted the court that he was unable to assist with his
own defense because there is no indication that these refusals, like his
courtroom behavior, were not the product of choice.
18
The defendant cites only a concurring opinion; see Illinois v. Allen,
supra, 397 U.S. 351 (Brennan, J., concurring) (‘‘[W]hen a defendant is
excluded from his trial, the court should make reasonable efforts to enable
him to communicate with his attorney and, if possible, to keep apprised of
the progress of his trial. Once the court has removed the contumacious
defendant, it is not weakness to mitigate the disadvantages of his expulsion
as far as technologically possible in the circumstances.’’); and a case that
is plainly distinguishable on its facts. See United States v. Fontanez, 878
F.2d 33, 36–37 (2d Cir. 1989) (defendant whose absence was result of being
taken into custody for unrelated crime did not waive right to be present
during his trial).