State v. Edwards ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. MARCELLO
ANTHONY EDWARDS
(AC 35986)
Sheldon, Prescott and Flynn, Js.
Argued January 7—officially released June 23, 2015
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
Owen Firestone, certified legal intern, and Alice
Osedach, senior assistant public defender, for the appel-
lant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Thomas R. Garcia, senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Marcello Anthony
Edwards, appeals from the judgment of conviction, ren-
dered against him after a jury trial, of assault in the
first degree in violation of General Statutes § 53a-59
(a) (1) and the revocation of his probation for having
violated General Statutes § 53a-32. On appeal, the defen-
dant claims that his conviction should be reversed and
that this case should be remanded for a new trial on
grounds that the trial court violated his due process
right to a fair trial by (1) failing to inquire, sua sponte,
as to his continuing competency to stand trial despite
his irrational behavior following an earlier determina-
tion of his competency; and (2) conducting critical
stages of the proceedings against him in his absence,
without either advising him of his right to attend such
proceedings or canvassing him as to whether he wanted
to waive that right. We reject both claims and, accord-
ingly, affirm the judgment of the court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
appeal. The victim, Vanessa Lindo, met the defendant
when she was fifteen and he was twenty or twenty-one
years old. They began dating at that time and eventually
had two children together, Joshua and Sada. The defen-
dant physically abused the victim during their relation-
ship. On one occasion, the defendant attacked the
victim while she was at work, forcing her to lock herself
in the office of a coworker to escape physical harm. On
another occasion, when the defendant and the victim
argued, he punched her in the head, splitting her lip and
rupturing her eardrum. In August, 2009, the relationship
ended, and the defendant moved out of the victim’s
home.
On November 16, 2011, the defendant took Sada to
McDonald’s after school and later brought her back
to his mother’s house, where he then lived. Shortly
thereafter, the victim arrived to pick up Sada and take
her home. Upon returning home, the victim called
Joshua, who was home alone, and asked him to unlock
the door to let them in the house. As the victim
approached the house, however, the defendant
accosted her and stabbed her repeatedly in the head,
chest, arm, and thigh. When the victim cried out for
help, the defendant fled. Joshua ran to the entry of the
house, where he saw the victim, lying on the ground,
bleeding. He dragged his mother into the house and
called 911. After the victim was taken to a hospital,
Joshua texted the defendant, ‘‘You’re not gonna get
away with it. You’re going to jail.’’ The defendant
responded by text, ‘‘Fuck you.’’
Thereafter, the defendant was arrested and charged
with assault in the first degree and violation of proba-
tion. The defendant pleaded not guilty to both charges
and elected a jury trial on the assault charge. On May
30, 2012, the date on which the defendant’s jury selec-
tion was scheduled to begin, the court, Randolph, J.,
ordered that the defendant undergo a competency eval-
uation pursuant to General Statutes § 54-56d.1 Under
the court’s order, the defendant was evaluated by a
clinical team at the MacDougall-Walker Correctional
Institution, which prepared and submitted a report stat-
ing its findings. At a subsequent hearing on the defen-
dant’s competency, held on August 1, 2012, the court,
Vitale, J., heard testimony from Jane St. Laurent, a
member of the clinical team, who summarized the
report as follows. The defendant was ‘‘unable to discuss
[his] case in a rational manner.’’ Whereas a typical inter-
view lasts for at least one hour to one and one-half
hours, and includes a discussion of the examinee’s
background, a mental status examination and a review
of the pending criminal charges, the defendant ‘‘talked
over’’ the evaluators, could not be interrupted, and
walked out of the interview after approximately twenty
minutes.2 On the basis of its observations, the team
determined that the defendant did ‘‘not have the ability
to develop a productive or collaborative relationship
with an attorney.’’ The team thus concluded that the
defendant was ‘‘not able to understand the proceedings
against him and . . . not able to assist in his defense.’’
The team further concluded, however, that there was
a substantial probability that the defendant could be
restored to competency with psychiatric evaluation and
treatment. It therefore recommended that he be com-
mitted for that purpose for a period of sixty days.
The court adopted the team’s findings by a preponder-
ance of the evidence, and thus found the defendant
incompetent to stand trial. Consistent with the team’s
recommendations, the court ordered the defendant to
participate in an inpatient treatment program at the
Whiting Forensic Division of the Connecticut Valley
Hospital (Whiting), and continued his case for sixty
days for further proceedings with respect to his com-
petency.
On September 26, 2012, after the sixty day period
had ended, the court, Dewey, J., convened a hearing
for the purpose of reassessing the defendant’s compe-
tency. At the commencement of the hearing, the court
noted that it had received a new competency evaluation
report, dated September 18, 2012, which had been
authored by Harry Hernandez, a competency monitor
at Whiting who had served as a member of the clinical
team that had evaluated the defendant.
Hernandez testified at the hearing in a manner consis-
tent with his report. He stated that the defendant ini-
tially was cooperative during treatment and was
described by his attending physicians as ‘‘calm . . .
and articulate with no sign of major mood disorder
or psychotic disorder.’’ Accordingly, the defendant’s
attending psychiatrist did not make any specific diagno-
sis of him, and no medications were administered to him
during his hospitalization. Hernandez further reported,
however, that the defendant later ‘‘exhibited a signifi-
cant change in his motivation to attain competency.
At the beginning of his hospital stay, he demonstrated
factual knowledge of the judicial processes, including
roles and functions of court personnel and court pro-
ceedings, as well as the importance of working with his
attorney. After several weeks his motivation decreased
and he began claiming that he was not competent as
he did not know roles of courtroom personnel or court
proceedings. The treatment team assessed this as not
credible and inconsistent with the way in which one’s
memory functions and as a sign of his poor motivation
to obtain competence.’’ The team thus unanimously
concluded that the defendant had the capacity to assist
in his defense and was competent to stand trial.
The defendant shouted out during Hernandez’ testi-
mony, stating, ‘‘[Y]ou’re lying, okay, I can’t work with
no attorney, you know that, okay. I can’t work with no
attorney, okay.’’ The defendant, after being warned by
the court that his behavior would necessitate his
removal, continued to interject. As a result, he was
removed from the courtroom for the remainder of the
competency hearing.3
The court ultimately found that the defendant was
competent to stand trial. It found no evidence that the
defendant could not work with an attorney or under-
stand the proceedings against him. On the contrary, it
found that the defendant ‘‘can do it when he chooses
to . . . it’s a matter of choice, not of ability.’’
Jury selection began on November 13, 2012. At the
outset, the defendant questioned the court’s authority
to preside over his case.4 The defendant also refused
to change out of his prison clothes, even though he
had been informed by the court that prospective jurors
would see him wearing them. The court then inquired
of defense counsel whether he had observed any change
in the defendant’s mental condition since the court had
found him competent. Defense counsel responded that
the defendant’s condition and demeanor were
unchanged since that time.
During voir dire, the defendant attempted repeatedly
to discuss the merits of his case with venirepersons.
At one point, he read aloud to a potential juror from
the police report. The court cautioned the defendant
that his outbursts would force it to remove him from
the courtroom. The defendant responded, ‘‘[W]ell, ya’ll
can’t go forward without me, so what we going to do?’’
The defendant continued to behave in a disruptive man-
ner, as a result of which the court once again ordered
that he be removed from the courtroom.5 The defendant
was then placed in a room adjacent to the courtroom
where he could both observe and hear the proceedings.
Later, however, when the defendant screamed and
banged on the walls of the adjacent room, the marshals
were required to leave the courtroom to attend to him.
The marshals reported to the court that the defendant
wanted to go downstairs, and that he would continue
banging on the walls until he was permitted to do so.
The court thereupon ordered that the defendant be
brought downstairs.
After a recess, defense counsel told the court that
the defendant wanted to be brought upstairs so that he
could address the court. The defendant was brought
upstairs to the courtroom, where he told the court that
he was supposed to question prospective jurors with
his attorney serving as standby counsel. The court
stated that it would not allow the defendant to proceed
pro se in light of his behavior. The defendant responded
by insisting that he be allowed to choose his own jury,
stating, ‘‘Listen, we going to have problems until I get
what I need, okay?’’6 The court then attempted to con-
tinue with voir dire, but the defendant threatened to
question the next juror. The defendant persisted in his
efforts to question prospective jurors and talked over
the court when it ordered him not to interrupt, causing
the court to order that he be removed from the court-
room once again.7
On December 10, 2012, the first day of evidence at
trial, the defendant refused to leave the lockup. Defense
counsel attributed his client’s refusal to his ‘‘[s]tubborn-
ness’’ and the court concurred, noting without objection
that his conduct did not raise a ‘‘competency issue
. . . .’’ The court further stated that, on the previous
court date, the defendant’s behavior had been violent
and that physical restraints had been required. Accord-
ingly, in lieu of forcing the defendant to come up to
the courtroom, the court told the marshals to communi-
cate to him that he would be ‘‘more than welcome’’
to attend the proceedings, if he chose to do so. The
defendant, however, remained in the lockup.
When the defendant finally returned to the courtroom
just prior to closing arguments, he stated for the record
that his absence from the proceedings constituted a
sixth amendment violation. The defendant acknowl-
edged that his absence had been voluntary, stating that
he was unwilling to proceed without a document from
the governor confirming the court’s authority to pro-
ceed. The defendant then left the courtroom once again,
stating, ‘‘Okay, well . . . y’all do your little hangin’ by
yourselves. I’m going back downstairs.’’
In its final jury charge, the court instructed the jury
not to draw any adverse inference from the defendant’s
absence from the courtroom during trial.8 The jury
thereafter found the defendant guilty of one count of
assault in the first degree. On the basis of the conviction
of first degree assault, the court found that the defen-
dant had violated his probation.9
During the defendant’s sentencing, defense counsel
noted for the record that he had been unable to commu-
nicate with the defendant ‘‘in terms of going over the
accurateness of the [presentence investigation report].’’
The defendant interrupted his attorney as he spoke,
stating, ‘‘He can’t make no efforts because he don’t
represent me, so what kind of efforts he make?’’ The
court told the marshals to place the defendant in the
adjacent room. In the defendant’s absence, members
of his family spoke on his behalf and requested leniency.
The defendant’s sister told the court: ‘‘[T]he person you
saw here and dealt with is not the person I know.’’ The
defendant’s brother described him as ‘‘[a] very ambi-
tious guy’’ and a hard worker. Referring to the defen-
dant’s absence during the trial, he stated that ‘‘[the
defendant] just felt that the system has been treating
him unfairly, and my understanding is that he did not
come to the trial because he thought that the system
was so much against him—everything that he does.’’
Defense counsel then had the following exchange
with the court:
‘‘[Defense Counsel]: From what little communication
and contact I’ve had with [the defendant], what I can
sense is his frustration with the system. I don’t know
if it’s delusional, I don’t know if he has a basis for it,
but I don’t think—
‘‘The Court: Refusal to accept the court’s jurisdiction
is not an issue of competency, it’s just flat out refusal.
‘‘[Defense Counsel]: That’s correct. And . . . I see it
every day with not [the defendant] but other clients of
mine, where they feel as though they’ve been tangled
in the system, and I think that’s really the root—whether
it’s based on fact or whether it’s his own opinion, that’s
what he believes. But again . . . as the court could see
from his family members . . . the [defendant] that we
saw and was portrayed during the course of the trial
is completely different from how his family . . . per-
ceive him to be.’’
The court then ordered that the defendant be brought
back into the courtroom so that he could make a state-
ment.10 The defendant was removed shortly thereafter,
however, when he repeatedly yelled and interrupted
the court as it attempted to impose his sentence.11
On the charge of assault in the first degree, the court
sentenced the defendant to a term of twenty years of
incarceration, of which five years was a mandatory
minimum sentence that could not be suspended or
reduced. On the charge of violation of probation, the
court sentenced the defendant to a term of thirty-seven
months incarceration, to be served consecutively to his
sentence for first degree assault. The defendant appeals
from the judgment of conviction.
I
The defendant first claims that the court violated his
due process right to a fair trial by failing to inquire
further as to his competency to stand trial when evi-
dence suggesting the need for such an inquiry came to
its attention during trial. More specifically, the defen-
dant argues that his behavior at trial, viewed in light
of the pretrial court’s earlier finding that he was incom-
petent, required the court to order sua sponte that his
competency be reevaluated pursuant to § 54-56d.
The defendant did not raise this claim at trial. Accord-
ingly, he asks this court to review it on appeal pursuant
to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).12
Because the record is adequate to permit such review
and the claim is of constitutional magnitude, we will
review the defendant’s claim.
At the outset, we set forth the applicable legal princi-
ples that guide our resolution of the issue. The ‘‘convic-
tion 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. Conn. Const.,
art. I, § 8; U.S. Const., amend. XIV, § 1 . . . . [T]his
constitutional mandate is codified in . . . § 54-56d (a),
which provides that [a] defendant shall not be tried,
convicted or sentenced while he is not competent. . . .
‘‘A defendant is not competent if he is unable to
understand the proceedings against him or to assist in
his own defense. . . . This statutory definition mirrors
the federal competency 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 under-
standing of the proceedings against him. . . . Even
when a defendant is competent at the commencement
of his trial, a trial court must always be alert to circum-
stances suggesting a change that would render the
accused unable to meet the standards of competence
to stand trial.’’ (Citations omitted; internal quotation
marks omitted.) State v. Johnson, 253 Conn. 1, 20–21,
751 A.2d 298 (2000).
‘‘Section 54-56d establishes the procedural require-
ments for competency determinations. A court may
undertake a competency examination upon a motion
by the defendant or the state and in some circumstances
must evaluate the defendant’s competency sua sponte.’’
Id., 22. ‘‘[A] trial court must order a competency hearing
at any time that facts arise to raise a reasonable doubt
about the defendant’s competency to continue with the
trial.’’ State v. DesLaurier, 230 Conn. 572, 589 n.12, 646
A.2d 108 (1994).
‘‘[T]he rule of Pate v. Robinson, [383 U.S. 375, 86 S.
Ct. 836, 15 L. Ed. 2d 815 (1966)] imposes a constitutional
obligation, under the due process clause, to undertake
an independent judicial inquiry, in appropriate circum-
stances, into a defendant’s competency to stand trial
. . . . When a Pate inquiry is required, a court may not
rely on the defendant’s subjective appraisal of his own
capacity or on the court’s personal observations of the
defendant but must hold an evidentiary hearing into
the defendant’s competence. . . . Competence to
stand trial is a legal question, which must ultimately be
determined by the trial court. . . . The decision to
grant [an evidentiary] hearing [into a defendant’s com-
petence] requires the exercise of sound judicial discre-
tion.’’ (Citation omitted; internal quotation marks
omitted.) State v. Cuesta, 68 Conn. App. 470, 481–82,
791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d
559 (2002).
The defendant claims that the court violated his due
process right to a fair trial by failing to monitor and
inquire into his competency to stand trial, which he
claims to have been warranted by the prior determina-
tion that he was incompetent and what he claims to
have been ‘‘regular reminders’’ of his underlying mental
issues as trial proceeded. The state disagrees, con-
tending that the court did inquire into the defendant’s
competency by confirming with defense counsel that
the defendant’s demeanor and condition had remained
unchanged since the time of the final pretrial evaluation
of his competency. The state thus contends that the
court justifiably determined that the defendant’s con-
duct resulted not from mental incompetency, but from
his deliberate choice to obstruct the proceedings. On
that basis, it argues, the court reasonably concluded
that the defendant’s behavior did not raise a reasonable
doubt as to his continuing competency. We agree with
the state.
We review the court’s determination of the defen-
dant’s competency under the abuse of discretion stan-
dard.13 As this court has stated, ‘‘[t]he trial judge is
in a particularly advantageous position 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 defen-
dant is highly significant.’’ State v. Murray, 28 Conn.
App. 548, 553–54, 611 A.2d 916 (1992), appeal dismissed,
225 Conn. 524, 624 A.2d 377 (1993).
In the present case, the record clearly shows that the
court continuously observed the defendant, repeatedly
inquired about and commented as to his competency,
and consistently concluded, on the basis of its firsthand
observations of the defendant’s demeanor, that his con-
duct, although disruptive and obstreperous, did not sug-
gest incompetence. When a court has previously found
a defendant competent and that determination is prem-
ised on proper consideration of the relevant factors,
‘‘the court’s inquiry when deciding whether to order
another competency evaluation is whether the defen-
dant’s condition has materially changed since [the] pre-
vious finding of competency.’’ (Internal quotation
marks omitted.) State v. Jordan, 151 Conn. App. 1, 37,
92 A.3d 1032, cert. denied, 314 Conn. 909, 100 A.3d
402 (2014).
At the defendant’s second competency hearing, the
court received evidence that at the beginning of the
defendant’s inpatient treatment, he demonstrated
awareness of the judicial process and of the roles of
the court and counsel, as well as his own role in the
proceedings, including the importance of working with
his attorney. Members of the defendant’s treatment
team described him as calm and cooperative and capa-
ble of advocating for his needs. After several weeks of
treatment, however, the defendant began to claim that
he was not competent and that he did not understand
the criminal process. His treatment team found that
these statements were ‘‘not credible,’’ unanimously con-
cluding that the defendant was capable of assisting in
his defense and competent to stand trial. Hernandez,
who testified on behalf of the clinical team, related the
observations, findings and conclusions set forth in his
report. During his testimony, moreover, and despite
having witnessed the defendant’s disruptive behavior
and resulting removal from the courtroom, Hernandez
stated that his conclusion as to the defendant’s compe-
tency remained unchanged. On the basis of this evi-
dence, the court determined that the defendant’s
behavior did not constitute evidence of incompetence.
The court attributed the defendant’s disruptive behavior
to his refusal to accept the court’s authority and unwill-
ingness to submit to the criminal process.
During subsequent proceedings, the defendant con-
tinued to engage in the same types of disruptive behav-
ior that had precipitated his removal from the
courtroom during the competency hearing. During voir
dire, the defendant refused to change out of his prison
clothing and persisted in verbally challenging the
court’s authority to try him, loudly interrupting the pro-
ceedings when he was present. The court inquired of
defense counsel whether he had observed any change
in the defendant’s condition or demeanor since the time
he was found competent to stand trial. Defense counsel
stated unequivocally that the defendant’s demeanor and
condition had not changed since that time.
On the first day of evidence, when the defendant
refused to come up to the courtroom, the court noted
for the record that it did not attribute the defendant’s
refusal to incompetency. The court further noted that
the defendant’s conduct stemmed from his refusal to
acknowledge or accept the court’s jurisdiction and
obstreperousness. Defense counsel agreed.
At sentencing, the court heard from the defendant’s
family members, who confirmed that the defendant’s
behavior during the trial had been uncharacteristic of
him. Never attributing such behavior to incompetence,
they suggested instead that it had resulted from the
defendant’s frustration with the criminal justice system.
When defense counsel also commented on the defen-
dant’s frustrations with the system and suggested that
they might be ‘‘delusional,’’ the court immediately
responded that ‘‘[r]efusal to accept the court’s jurisdic-
tion is not an issue of competency, it’s just flat out
refusal.’’ Defense counsel, again, agreed.
In the present case, there is no question that the court
was alert to the issue of the defendant’s competency.
Yet, the court rejected the factual premise advanced by
the defendant on appeal—that the defendant’s conduct
was attributable to an underlying mental impairment
and resulting incompetence. Instead, it consistently and
justifiably found that such conduct was a product of
the defendant’s deliberate refusal to move forward with
his trial. The court expressly confirmed its assessment
with the defendant’s counsel, who invariably agreed
that the defendant’s demeanor had not materially
changed since the court’s previous finding of compe-
tency. Indeed, defense counsel attributed the defen-
dant’s antics to his ‘‘[s]tubbornness.’’ The court was
entitled to consider and rely on counsel’s representa-
tions as a basis for not requiring a reevaluation of the
defendant’s competency to stand trial. See State v. Pau-
lino, 127 Conn. App. 51, 65, 12 A.3d 628 (2011) (court
entitled to rely on trial counsel’s statement that he was
not requesting competency hearing as basis for conclud-
ing that no such hearing was necessary).
In sum, our review of the record reveals that the
court continuously monitored and carefully considered
the possible implications of the defendant’s midtrial
behavior on the issue of his competency to stand trial,
and repeatedly sought and received input from defense
counsel on that issue to validate its own assessment
that such behavior was the product of rational and
voluntary, if ill-advised, resistance to authority rather
than incompetency. The court did not abuse its discre-
tion in relying upon its own observations of the defen-
dant and the confirmatory input of counsel, considered
in the light of the defendant’s previous competency
evaluation, as bases for not ordering a further evalua-
tion of the defendant’s competency during trial. Accord-
ingly, the defendant’s claim fails to satisfy Golding’s
third prong and, thus, must be rejected.
II
The defendant next claims that the trial court con-
ducted critical stages of the proceedings against him
in his absence in violation of his sixth and fourteenth
amendment rights. More particularly, the defendant
argues that the court allowed him to be tried in absentia,
without either advising him of his right to attend such
proceedings or canvassing him as to whether he wanted
to waive that right. He therefore claims that he was
denied his constitutional right to be present during all
critical stages of his prosecution and, accordingly, that
this court should grant him a new trial. We are not per-
suaded.14
‘‘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) (the right to personal
presence at all critical stages of the trial and the right
to counsel are fundamental rights of each criminal
defendant). Indeed, [a] defendant’s right to be present
. . . is scarcely less important to the accused than the
right of trial itself. . . . State v. Simino, 200 Conn. 113,
127, 509 A.2d 1039 (1986). Although the constitutional
right to be present 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 guaran-
teed by article first, § 8, of our state constitution), cert.
denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982(1988).’’ (Internal quotation marks omitted.) State v.
Lopez, 271 Conn. 724, 732, 859 A.2d 898 (2004).
A defendant in a criminal case may waive fundamen-
tal constitutional rights, including his right to be present
at trial. See Talton v. Warden, 171 Conn. 378, 385–86,
370 A.2d 965 (1976). ‘‘Waiver does not have to be
express, but may consist of acts or conduct from which
waiver may be implied.’’ (Internal quotation marks omit-
ted.) Id. Waiver is determined on the basis of the particu-
lar facts and circumstances that surround the case.
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82
L. Ed. 1461 (1938).
A defendant’s deliberate absence constitutes a waiver
of the right to be present. In Taylor v. United States,
414 U.S. 17, 20, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973), the
United States Supreme Court found that the defendant
‘‘who was at liberty on bail, had attended the opening
session of his trial, and had a duty to be present at
trial,’’ waived his right to be present by failing to appear
for his trial. The Supreme Court rejected the defendant’s
claim that the District Court had an obligation to
expressly warn him of his rights and construed his
voluntary absence from trial as an effective waiver,
finding the suggestion that the defendant entertained
any doubt about his right to be present at his trial to
be ‘‘wholly incredible . . . .’’ Id.A defendant may also waive his right to be present at
trial by acting in a disruptive and obstreperous manner,
provided that he has been warned that his conduct will
result in his removal. For example, in Illinois v. Allen,
397 U.S. 337, 340, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970),
the defendant repeatedly interrupted the proceedings,
at one point stating, ‘‘[t]here’s not going to be no trial,
either. I’m going to sit here and you’re going to talk
and you can bring your shackles out and strait jacket
and put them on me and tape my mouth, but it will
do no good because there’s not going to be no trial.’’
(Internal quotation marks omitted.) The court admon-
ished the defendant, cautioning him that such disruptive
conduct would force it to remove him from the court-
room. Id. The defendant persisted in his behavior, and
as a result, the court ordered his removal during voir
dire examination and the state’s case-in-chief. The
United States Supreme Court concluded that the defen-
dant could not exercise his constitutional right to
remain in the courtroom, having engaged in conduct
that rendered it nearly impossible to carry out the trial
proceedings. Id., 338.
The Supreme Court opined that ‘‘although mindful
that courts must indulge every reasonable presumption
against the loss of constitutional rights . . . a defen-
dant 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.’’ Id.,
343. 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
proceedings.’’ Id.Recognizing these well established principles, our
rules of practice expressly provide that ‘‘[t]he defendant
must be present at the trial and at the sentencing hear-
ing, but, if the defendant will be represented by counsel
at the trial or sentencing hearing, the judicial authority
may . . . [e]xcuse the defendant from being present
at the trial or a part thereof or the sentencing hearing
if the defendant waives the right to be present . . . .’’
Practice Book § 44-8. A trial court’s finding that a defen-
dant has voluntarily absented himself from the proceed-
ings is reviewed for an abuse of the court’s discretion.
State v. Simino, supra, 200 Conn. 132.
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. Jones, 281 Conn. 613, 640–41, 916 A.2d 17(defendant initiated his removal from courtroom when
he asked to leave courtroom and engaged in altercation
with marshals), cert. denied, 552 U.S. 868, 128 S. Ct.
164, 169 L. Ed. 2d 112 (2007); State v. Gonzalez, 205
Conn. 673, 689, 535 A.2d 345 (1987) (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 inter-
rupting voir dire, and then declined to return when
sheriff informed him he could do so, ‘‘unequivocally
waived his right to attend jury selection’’).
In the present case, we conclude that the defendant
waived his constitutional right to be present by deliber-
ately absenting himself from the proceedings and by
behaving in a disruptive manner when he was present
so as to prevent his trial from moving forward in an
orderly fashion.
During jury selection, the court cautioned the defen-
dant that his disruptive behavior would result in his
removal from the courtroom. The defendant challenged
the court’s authority to move forward with voir dire in
his absence.15 The defendant continued to act out by
attempting to discuss the merits of his case with a
prospective juror, thereby forcing defense counsel to
exercise a peremptory challenge. The court made
efforts to accommodate the defendant’s behavior by
placing him in the room adjacent to the courtroom,
where he could observe and hear the proceedings.
During the evidentiary phase of his trial, the defen-
dant chose to absent himself from the proceedings once
again.16 On this occasion, the defendant refused to come
up to the courtroom while fully acknowledging and
taunting the court as to its alleged violation of the very
right he now claims to have been violated. When the
defendant finally appeared in the courtroom prior to
closing arguments, he expressly stated that, ‘‘under the
sixth amendment . . . I was supposed to confront
those accusation witnesses . . . .’’
Later, at his sentencing, the defendant interrupted
defense counsel as he attempted to detail for the record
the defendant’s unwillingness to assist him in reviewing
his presentence investigation report. The defendant
also interrupted the court as it attempted to impose his
sentence, challenging its authority to act and opining
at length about the alleged injustice of his prosecution.
These outbursts occasioned his removal from the
courtroom.
The defendant does not dispute these facts, but urges
us to find the court’s conduct to have been deficient
on the ground that when he refused to come up to the
courtroom and engaged in obstructionist tactics that
led to his removal, the court had a duty to make further
inquiries of him to confirm that he did not want to be
present. The defendant submits that a valid waiver of
the right to be present requires that the defendant be
brought personally before the court, advised of his right
to be present, and then permitted to make an intelligent
and competent waiver in light of that advisement. The
defendant concedes, however, that no such procedure
is required under Connecticut law. See Talton v. War-
den, supra, 171 Conn. 380, 384 (finding waiver where
defense counsel informed court that defendant chose
not to be present at proceeding he knew was occurring).
‘‘[A] trial court need not engage in a colloquy with a
defendant expressly focused on the defendant’s under-
standing of his right to be present to determine that a
waiver of the right of presence was valid. Rather, the
court may infer the defendant’s waiver 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.’’ (Internal quotation marks omitted.)
State v. Crawley, 138 Conn. App. 124, 132–33, 50 A.3d
349, cert. denied, 307 Conn. 925, 55 A.3d 565 (2012).17
In the present case, the record reveals that the defen-
dant was given ample opportunity to be present, yet he
chose to remain in the lockup and to be disruptive
while the trial continued in his absence. Moreover, the
defendant’s argument is particularly unavailing in light
of the evidence, which demonstrates his keen aware-
ness of the constitutional principles that he now
advances on appeal. ‘‘[O]ur courts, palladiums of liberty
as they are, cannot be treated disrespectfully with impu-
nity. Nor can the accused be permitted by his disruptive
conduct indefinitely to avoid being tried on the charges
brought against him.’’ Illinois v. Allen, supra, 397 U.S.
346. Review of the record suggests, consistent with the
trial court’s assessment, that the defendant chose to
protest the proceedings on the basis of what he per-
ceived to be procedural deficiencies in his prosecution
or that he chose to absent himself as part of a flawed
strategy to prevent his prosecution from moving for-
ward. Either course of conduct constitutes a waiver of
the defendant’s constitutional right to be present at
trial. ‘‘We cannot permit an accused to elect one course
at the trial and then . . . to insist on appeal that the
course which he rejected at the trial be reopened to
him . . . .’’ (Internal quotation marks omitted.) State
v. Drakeford, supra, 202 Conn. 81.
In sum, the court did not abuse its discretion by
proceeding with trial in the defendant’s absence. The
court was well justified in removing him in the circum-
stances here presented, and properly did so without
making any further inquiries of him as to his awareness
of and desire to waive his right to be present at his trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 54-56d provides in relevant part: ‘‘(a) . . . A defen-
dant shall not be tried, convicted or sentenced while the defendant is not
competent. For the purposes of this section, 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.
‘‘(b) . . . A defendant is presumed to be competent. The burden of prov-
ing 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, in accordance with procedures established by the judges of the
Superior Court, there is probable cause to believe that the defendant has
committed the crime for which the defendant is charged, the court shall
order an examination of the defendant as to his or her competency. The
court may (1) appoint one or more physicians specializing in psychiatry to
examine the defendant, or (2) order the Commissioner of Mental Health
and Addiction Services to conduct the examination either (A) by a clinical
team consisting of a physician specializing in psychiatry, a clinical psycholo-
gist and one of the following: A clinical social worker licensed pursuant to
chapter 383b or a psychiatric nurse clinical specialist holding a master’s
degree in nursing, or (B) by one or more physicians specializing in psychiatry,
except that no employee of the Department of Mental Health and Addiction
Services who has served as a member of a clinical team in the course of
such employment for at least five years prior to October 1, 1995, shall be
precluded from being appointed as a member of a clinical team. If the
Commissioner of Mental Health and Addiction Services is ordered to conduct
the examination, the commissioner shall select the members of the clinical
team or the physician or physicians. When performing an examination under
this section, the examiners shall have access to information on treatment
dates and locations in the defendant’s treatment history contained in the
Department of Mental Health and Addiction Services’ database of treatment
episodes for the purpose of requesting a release of treatment information
from the defendant. If the examiners determine that the defendant is not
competent, the examiners shall then determine whether there is a substantial
probability that the defendant, if provided with a course of treatment, will
regain competency within the maximum period of any placement order
under this section. If the examiners determine that there is a substantial
probability that the defendant, if provided with a course of treatment, will
regain competency within the maximum period of any placement order
under this section, the examiners shall then determine whether the defendant
appears to be eligible for civil commitment, with monitoring by the Court
Support Services Division, pursuant to subdivision (2) of subsection (h) of
this section. If the examiners determine that there is not a substantial
probability that the defendant, if provided with a course of treatment, will
regain competency within the maximum period of any placement order
under this section, the examiners shall then determine whether the defendant
appears to be eligible for civil commitment to a hospital for psychiatric
disabilities pursuant to subsection (m) of this section and make a recommen-
dation to the court regarding the appropriateness of such civil commitment.
The court may authorize a physician specializing in psychiatry, a clinical
psychologist, a clinical social worker licensed pursuant to chapter 383b or
a psychiatric nurse clinical specialist holding a master’s degree in nursing
selected by the defendant to observe the examination. Counsel for the
defendant may observe the examination. The examination shall be com-
pleted within fifteen business days from the date it was ordered and the
examiners shall prepare and sign, without notarization, a written report and
file such report with the court within twenty-one business days of the date
of the order. On receipt of the written report, the clerk of the court shall
cause copies to be delivered immediately to the state’s attorney and to
counsel for the defendant.
‘‘(e) . . . The court shall hold a hearing as to the competency of the
defendant not later than ten days after the court receives the written report.
Any evidence regarding the defendant’s competency, including the written
report, may be introduced at the hearing by either the defendant or the
state, except that no treatment information contained in the Department of
Mental Health and Addiction Services’ database of treatment episodes may
be included in the written report or introduced at the hearing unless the
defendant released the treatment information pursuant to subsection (d) of
this section. If the written report is introduced, at least one of the examiners
shall be present to testify as to the determinations in the report, unless the
examiner’s presence is waived by the defendant and the state. Any member
of the clinical team shall be considered competent to testify as to the team’s
determinations. A defendant and the defendant’s counsel may waive the
court hearing only if the examiners, in the written report, determine without
qualification that the defendant is competent. Nothing in this subsection shall
limit any other release or use of information from said database permitted by
law. . . .’’
2
According to the competency evaluation report, the defendant exhibited
symptoms associated with a psychiatric disorder, including ‘‘tangential think-
ing, rapid and pressured speech and an agitated affect.’’
3
The defendant banged on the door of the adjacent room until the noise
prompted the court to order that he be brought downstairs.
4
The defendant requested that the court produce ‘‘paperwork’’ from the
governor documenting its authority to proceed.
5
The following exchange occurred between the court and the defendant:
‘‘The Court: If you continue to talk during this I’m going to have to remove
you from the courtroom. Do you understand that?
‘‘The Defendant: I’m going to continue doin’ this until we get it straight.
‘‘The Court: Then you’re going to be removed from the courtroom.
‘‘The Defendant: Until we get this straight, okay.
‘‘The Court: Put him in that room next door so he can watch what’s
going on.
‘‘The Defendant: Until we get this straight. I’m sick and tired of this.’’
6
The record reveals that the defendant expressed his dissatisfaction with
his attorney throughout the proceedings, and his attorney repeatedly told
the court that the defendant refused to speak to him.
7
As the defendant was escorted out of the courtroom, he called out,
‘‘Bring me downstairs—bring me back downstairs. I don’t know why y’all
brung me up here, okay. I’m going back downstairs.’’
8
The jury was instructed as follows: ‘‘The defendant has decided to allow
the trial to proceed in his absence. He has a constitutional right to do so.
This decision has no bearing on whether he is guilty or not guilty, and you
are not to draw any inference unfavorable to the defendant from the exercise
of his right.’’ We have no occasion to rule on the propriety of the court’s
instruction, as no objection to it has been raised on appeal.
9
The defendant attended the violation of probation hearing.
10
The record reveals that the defendant told the marshals that he did not
want to come back to the courtroom. The court ordered the defendant to
be brought back into the courtroom so that he could make a statement to
that effect on the record.
11
The defendant argued with the court about his involvement in the crime,
claiming that the victim and the witnesses had fabricated their stories.
12
Under the Golding doctrine, ‘‘a defendant can prevail on a claim of
constitutional error not preserved at trial only if all of the following condi-
tions are met: (1) the record is adequate to review the alleged claim of
error; (2) the claim is of constitutional magnitude alleging the violation of
a fundamental right; (3) the alleged constitutional violation clearly exists
and clearly deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate harmlessness of
the alleged constitutional violation beyond a reasonable doubt.’’ (Emphasis
omitted; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40.
13
The defendant contends that this court’s review on a question of compe-
tency is a mixed question of law and fact that necessarily entails a determina-
tion as to whether the evidence before the trial court raised a reasonable
doubt about the defendant’s competency. Accordingly, the defendant claims
that the trial court’s determination not to inquire into his competency is an
implicit ruling on the sufficiency of the evidence and thus warrants de novo
review. The defendant’s argument is foreclosed by this court’s precedent.
See, e.g., State v. Jordan, 151 Conn. App. 1, 33, 92 A.3d 1032 (whether court
abused discretion in failing to order competency evaluation), cert. denied,
314 Conn. 909, 100 A.3d 402 (2014). ‘‘[T]his court’s policy dictates that one
panel should not, on its own, [overrule] the ruling of a previous panel. The
[overruling] may be accomplished only if the appeal is heard en banc.’’
(Internal quotation marks omitted.) State v. Rivera, 145 Conn. App. 344,
345–46, 76 A.3d 197, cert. denied, 310 Conn. 962, 83 A.3d 344 (2013). More-
over, subsequent to the submission of the defendant’s brief, our Supreme
Court, although not expressly considering the issue that the defendant has
raised on appeal, confirmed that the adequacy of the trial court’s inquiry
into a defendant’s competency and the propriety of its decision not to order
a competency evaluation are reviewed for abuse of discretion. See State v.
Dort, 315 Conn. 151, 169, 106 A.3d 277 (2014).
14
The defendant’s unpreserved claim, which arises from the confrontation
clause of the sixth amendment and the due process clause of the fourteenth
amendment, is of constitutional magnitude and, thus, reviewable pursuant
to State v. Golding, supra, 213 Conn. 239–40. See footnote 5 of this opinion.
The state argues that because the defendant does not have a constitutional
right to a warning or canvass regarding the constitutional right to be present,
his claim is not reviewable. We decline to take such a narrow view. We
construe the defendant’s claim to be that the court did not take adequate
measures to ensure his presence at trial, a right that the state does not
contest the defendant was constitutionally entitled to. The defendant’s claim
is constitutional in scope and, thus, reviewable. Because we conclude, how-
ever, that the defendant has failed to show that his constitutional rights
were clearly violated by the court’s conduct, he cannot prevail. See State
v. Golding, supra, 240.
15
As noted previously in this opinion, the defendant stated at that time,
‘‘Well, ya’ll can’t go forward without me, so what we going to do?’’
16
The record reveals that the marshals made several attempts to bring
the defendant upstairs. The defendant’s reaction was hostile—it was
reported that the defendant was aware that his trial was scheduled to begin
but that he refused to come upstairs. The court then inquired of defense
counsel: ‘‘It is going to go forward whether he refuses or not. Does he
understand that?’’ Defense counsel responded that he did, but that the
defendant refused to speak with him.
17
We also reject the defendant’s claim that a personal rights advisement
was required in this instance due to his alleged mental impairment. The
court, having determined that the defendant was competent to stand trial,
had no further obligation to inquire whether the defendant’s self-imposed
absences were attributable to an underlying impairment. See State v. Gonza-
lez, supra, 205 Conn. 689.