State v. Jordan ( 2014 )

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STATE OF CONNECTICUT v. VICTOR
L. JORDAN, SR.
(AC 34478)
Bear, Sheldon and Flynn, Js.*
Argued March 6—officially released June 17, 2014
(Appeal from Superior Court, judicial district of New
Britain, Alander, J. [motion for competency evaluation];
D’Addabbo, J. [judgment].)
Pamela S. Nagy, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, was Brian Preleski, state’s
attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Victor L. Jordan, Sr.,
appeals from the judgment of conviction rendered
against him after a court trial on the charge of aggra-
vated sexual assault in the first degree in violation of
General Statutes § 53a-70a (a) (1). The court sentenced
the defendant on that charge to a term of twenty years
in prison, to be served consecutively to a sixty-four
year term of imprisonment to which he previously had
been sentenced on a series of unrelated charges, plus
lifetime sexual offender registration. On appeal, the
defendant claims that the trial court abused its discre-
tion by failing to conduct an adequate inquiry into the
defendant’s competency to stand trial and by failing to
order a competency hearing at the start of trial pursuant
to General Statutes § 54-56d.1 We disagree, and thus
affirm the judgment of conviction.
I
We begin by describing the tortuous procedural his-
tory of this case, which unfolded over the course of
twenty-four court appearances from June 30, 2010,
through December 6, 2011. On June 30, 2010, at the
defendant’s arraignment, the court, Brunetti, J.,
appointed the New Britain public defender’s office to
represent the defendant. At that initial court appear-
ance, when Assistant Public Defender Mark Johnson
reported to the court that the defendant refused to
speak with him, the defendant declared, ‘‘Ain’t nobody
representing me. Why are you even speaking for me,
man? Don’t say shit. Don’t say nothing for me.’’ There-
after, when Johnson attempted to have the defendant
sign a document acknowledging that his case had been
transferred to the Part A criminal docket in New Britain,
the defendant commanded Johnson, on the record, ‘‘Get
out of my face, man.’’
On the next scheduled court date, July 12, 2010, the
marshals informed the court, Strackbein, J., that the
defendant refused to leave the courthouse lockup.
Assistant Public Defender Christopher Eddy then
advised the court that when he had attempted to speak
with the defendant, the defendant told him that he did
not want a public defender to represent him. The court
thus continued the case for one week, explaining that
if nothing changed by the next court date, it would
order the defendant to undergo a competency evalua-
tion. Thereafter, on July 19, 2010, when the defendant
again refused to have a public defender represent him
or to be present in the courtroom, the state moved for,
and the court, Strackbein, J., ordered, that the defen-
dant undergo a competency evaluation. In entering its
order, the court stated, ‘‘[I]t seems to the court that
he’s not able to assist in his own defense at this moment,
and we need to find out whether that’s a competency
issue.’’ On August 2, 2010, when the defendant next
returned to court, he once again refused to leave the
courthouse lockup. The case was thus continued until
September 20, 2010, for a hearing on the previously
ordered competency evaluation.
The defendant’s competency hearing took place on
September 20, 2010, before the court, D’Addabbo, J.
Before the hearing, Assistant Public Defender Claud
Chong advised the court that he had attempted to speak
with the defendant, but that the defendant did not want
the assistance of a public defender, and instead wanted
to represent himself. Because, however, the defendant
refused once again to appear in the courtroom, the
court appointed Chong to represent him for the purpose
of the competency hearing. The defendant observed
and listened to the proceeding from a lockup area adja-
cent to the courtroom. Forensic psychologist Fred Sto-
rey testified at the competency hearing that he and the
other members of his evaluative team had found that
‘‘[the defendant] did have the capacity to assist in his
defense . . . [and] he did have the ability to under-
stand the proceedings.’’ Following Storey’s testimony,
the state asked the court to find the defendant compe-
tent to stand trial. Chong concurred with the state’s
recommendation, reporting that he ‘‘s[aw] no basis to
believe that [the defendant] is not competent to stand
trial.’’ The court thereupon found the defendant to be
competent, able to understand the proceedings against
him, and to assist in his own defense.
On October 26, 2010, Eddy informed the court,
Strackbein, J., that the defendant wanted to represent
himself and, to that end, asked the court to canvass
him. During the canvass, the defendant stated that he
was familiar with legal proceedings and the rules of
evidence, and that he knew how to defend his case. He
acknowledged that he understood the range of possible
penalties if he were convicted of the charged offense,
and stated ‘‘clear[ly] and unequivocally’’ that he wanted
to represent himself and refused to be represented by
counsel or even to have counsel on standby. At that
time, the court permitted the defendant to represent
himself, noting, ‘‘I’m sure that the judge who hears your
trial will have further questions regarding your self-
representation, but at this point the public defender’s
office will only be standby counsel.’’ The state then
offered the defendant a plea bargain on a charge of
sexual assault in the first degree, under which he would
be sentenced to a term of ten years in prison, to be
served concurrently with his current sixty-four year
sentence. The defendant, after confirming that he fully
understood the state’s offer, flatly rejected it, stating,
‘‘The answer is no.’’
On December 21, 2010, the defendant filed a discov-
ery motion, a motion for a bill of particulars, and a
motion for a waiver of costs and fees to enable him to
hire a private investigator. Upon learning of the defen-
dant’s latter motion, Judge Strackbein continued the
case until January 3, 2011, in order to research whether
the defendant was entitled to hire his own private inves-
tigator at the state’s expense or whether he was limited
to using one provided by the public defender’s office.
Thereafter, on January 3, 2011, Judge Strackbein held
that the defendant would be ‘‘able to use the investigator
at the public defender’s office for investigating [his]
case’’ but that he was not entitled to hire his own private
investigator at the state’s expense. On March 7, 2011,
Judge Strackbein confirmed with the parties that the
defendant had received a complete copy of the state’s
file and that his case would be called for trial.
On April 6, 2011, the defendant again moved the court
to compel the state to pay for him to hire his own
private investigator. The state argued that the defendant
was entitled to use the three investigators from the New
Britain public defender’s office, but that he did not have
the right to hire a private investigator at the state’s
expense. The defendant responded to the state’s argu-
ment by calling the prosecutor ‘‘an idiot.’’ The court
advised the defendant not to speak in that fashion, to
which the defendant responded, ‘‘I can speak how I
want to speak.’’ The court reiterated to the defendant
that he could either use the public defender’s private
investigators for free or hire one at his own expense.
The defendant and the court then engaged in the follow-
ing colloquy:
‘‘The Defendant: There is a conflict of interest. I’m
going to tell you what the conflict of interest is, because
if they represent me, there’s going to be a problem.
There’s going to be a serious problem.
‘‘The Court: What is the serious problem, sir?
‘‘The Defendant: No. You just don’t understand that.
‘‘The Court: Well, then you have to tell me.
‘‘The Defendant: So, I would allow them to represent
me, and I’m going to do what I’m going to do
regardless—
‘‘The Court: What is the serious problem?
‘‘The Defendant:—and then we can create the conflict
of the interest.
‘‘The Court: I’m asking you what the serious problem
would be.
‘‘The Defendant: The problem is that I got sixty-five
years. I don’t give a damn about doing whatever I have
to do to prevent—to establish that conflict of interest,
so don’t start pissing on me and telling me it’s rain-
ing, Judge.
‘‘The Court: Okay. Here’s the situation.
‘‘The Defendant: So, no, there is no deal. You are
either going to give me this right or else they will repre-
sent [me] and I’ll do what I have to do, which I have
no problem of doing.
‘‘The Court: I’m unclear about what you’re saying
what you’re going to do.
‘‘The Defendant: I don’t have to make it clear to you.
They know what it is. . . .
‘‘The Court: If you want your own [investigator], you’ll
have to hire your own.
‘‘The Defendant: The end product is going to be
the same.
‘‘The Court: I don’t know what that means.
‘‘The Defendant: You’re going to get somebody hurt,
that’s what you’re going to do.
‘‘The Court: I don’t know what that means, ‘to get
somebody hurt.’
‘‘The Defendant: It means exactly what it means.
‘‘The Court: Are you threatening someone now?
‘‘The Defendant: Yes, I am.
‘‘The Court: And who are you threatening?
‘‘The Defendant: I’m telling you [that] you’re going
to get somebody hurt, period.
‘‘The Court: Who? Who is going to be hurt?
‘‘The Defendant: It is what it is.
‘‘The Court: So, you’re going to make threats. That’s
a big problem.
‘‘The Defendant: Well, whatever; it means nothing to
me. I’m asking you to give me my rights—
‘‘The Court: Okay. According to—
‘‘The Defendant:—of what I’m due. If you’re not going
to grant me my rights, of what is due, then I might as
well become something that’s other than that.
‘‘The Court: I don’t know what that means.
‘‘The Defendant: Well, then, of course you don’t.
‘‘The Court: But you’re not entitled—
‘‘The Defendant: You’re just as much [of] an idiot as
this guy is.
‘‘The Court: Well, that’s very nice. Okay. So, that
motion for your own investigator is denied.
‘‘The Defendant: Yeah, of course.’’
Jury selection was scheduled to begin on April 13,
2011, before the court, Alander, J., who began by can-
vassing the defendant about his decision to represent
himself at trial. The defendant responded that he had
already been canvassed and was not going to answer
any of the judge’s questions. He also told the court to
‘‘cut through all the bullshit’’ and to ‘‘just get to the
point’’ because ‘‘we’re basically done here,’’ and then
proceeded to head out of the courtroom. The court
instructed the marshals to take the defendant into the
holding cell adjacent to the courtroom, but the defen-
dant stated that he wanted to be brought downstairs
to the lockup. The marshals escorted him to the lockup,
and the court advised standby counsel that the defen-
dant had waived his right to be present by using profan-
ity and failing to act appropriately in court. The court
further advised that it would give the defendant every
opportunity to represent himself, but that it would not
let him ‘‘torpedo [the proceedings], which, frankly,
appears to be his intent.’’ The court then scheduled jury
selection to begin on April 26, 2011.
Thereafter, on April 26, 2011, when the defendant
appeared before Judge Alander for the start of jury
selection, the defendant refused to change out of his
orange jumpsuit or to speak to the court, prompting
the court to warn him, ‘‘If you continue to behave like
this, which I consider to be an impediment to the orderly
proceedings of this trial, you will be taken into the
holding cell where you can observe these proceedings
by video and listen by audio. We will offer you that
opportunity. Last time you were here, you refused to
go into that cell and were taken downstairs and weren’t
able to listen. I will also—if you continue to act like
this—find that you’ve waived your right to represent
yourself, and you’ve waived the right to confront the
witnesses against you and to be present in court. I will
appoint the public defender to represent you, and we
will proceed with this trial in your absence. So, you
just need to know that your behavior is not going to
stop this trial. It’s just going to mean that you’re not
going to be a participant in it, and you won’t be a
participant in it because of the behavior that you are
exhibiting.’’ The court then gave the defendant another
opportunity to change out of his orange jumpsuit so as
not to prejudice himself in front of potential jurors.
When the defendant refused to respond to the court,
the court asked the marshals to take him to the adjacent
holding cell, where he again refused to go. In light
of his refusal, the marshals took him downstairs to
the lockup.
The court, Alander, J., then appointed the public
defender’s office to represent the defendant, despite
Chong’s statement to the court that the appointment
should not be made because the defendant had volunta-
rily, knowingly, and intelligently waived his right to
counsel, and, ‘‘on one occasion [had] threatened
[Chong] with violence if [Chong] was to come near him
again and attempt to speak with him.’’ Although the
court recognized the difficult position in which it was
placing counsel by ordering him to represent the defen-
dant, because he had ‘‘clearly indicated [that] he has
no intention of cooperating with [counsel], and, in fact,
has threatened members of the public defender’s office
with violence,’’ it reasoned that the appointment of the
public defender’s office was ‘‘[a] wiser course of action
. . . than to have [the defense] table totally empty . . .
[because a] less than perfect defense is better than no
defense . . . .’’ Chong then advised the court that he
had a scheduling conflict on the dates proposed for the
commencement of jury selection, and thus that Eddy,
of the public defender’s office, would represent the
defendant instead.
On May 11, 2011, at a hearing on Eddy’s later motion
to appoint a special public defender to represent the
defendant,2 Judge Alander noted that the defendant was
present in the courthouse but refused to leave the
lockup. The court stated, ‘‘It’s clear to me that he’s trying
to disrupt and delay these proceedings . . . [and] it’s
clear to me that he wants to do what he can to make
sure this trial doesn’t proceed. So, his absence means
that he can’t represent himself, and the appointment
of the public defender’s office to represent him stands.’’
The court granted the motion and continued the case
for the appointment of a special public defender and
the assignment of a trial date.
On June 27, 2011, special public defender Andrew
Cates, who had been appointed to represent the defen-
dant, advised Judge Alander that his client wanted to
address the court. The following colloquy ensued:
‘‘The Defendant: First and foremost, I filed a motion
for stay of proceedings because I have a motion for
review with the Appellate Court filed, so—
‘‘The Court: Before we get to that issue, I have to
decide whether you can represent yourself or not.
‘‘The Defendant: That’s already been made clear.
‘‘The Court: . . . [W]hen you—last time you were
here before me and you refused to talk, I found that by
your refusal to talk, you waived your right to represent
yourself because, obviously, you can’t represent your-
self if you’re not going to speak. You now, apparently,
changed your mind and you’re willing to speak. So, the
question now is whether you want to represent yourself.
‘‘The Defendant: Yes.
‘‘The Court: Okay. Now, you’re appearing in court
here without a shirt. For some reason you’ve decided
that you don’t want to wear a shirt.
‘‘The Defendant: Hey, this is—
‘‘The Court: In order for you to represent yourself,
you’re going to have to be fully clothed.
‘‘The Defendant: I wasn’t—my people wasn’t fully
clothed when you brought them from fucking Africa
like this, so it is what it is. . . . Under the circum-
stances, I’m a civilized savage, basically, because that’s
basically how we came here, so—and, basically, when
you deny me my rights, then I’m partially at—I’m par-
tially a citizen of the United States with some rights in
lieu of civilization, but at the same time, a savage, so
this is good. I fucking be butt naked, I’ll be standing
here butt naked. I was born this way, so it is what it
is. What’s the—
‘‘The Court: You may—
‘‘The Defendant:—difference of me having
‘‘The Court: You may have been—
‘‘The Defendant:—a monkey suit on like you or this
guy and me being here with this on. It’s irrelevant.
‘‘The Court: . . . If you continue in this fashion—
‘‘The Defendant: What fashion is that?
‘‘The Court: Not being clothed, not being fully
clothed, using profanity. You’re not going to be able to
represent yourself . . . .
***
‘‘The Defendant: I’m willing to comply.
‘‘The Court: Okay. You have to behave respectfully.
You can’t be using profanity. You’re willing to observe
that rule?
‘‘The Defendant: To the best of my ability. . . . I’m
partially savage so, you know, that might come out.
‘‘The Court: . . . [I]t’s not hard to obey a rule of not
using profanity if you’re willing to.
‘‘The Defendant: Man, I grew up in the hood.
‘‘The Court: That may be—
‘‘The Defendant: Only thing I do know how to. I could
speak pretty well. I have an extensive vocabulary, but
at the same time it comes naturally to me so you have
to forgive me. So, under the circumstances, just because
I speak that way and I may express myself at times that
way, you’re going to hold that against me just like as
if you use a certain word that I don’t comprehend, that’s
unfamiliar to me, do I address the court and say I object
because I don’t comprehend what you’re saying, you
know, if you use . . . a different terminology. If I
started speaking to you in Mandarin, what you going
to do, bring an interpreter here?
‘‘The Court: . . . It’s a very simple question for
which you need to answer yes or no.
‘‘The Defendant: Well, I need an interpreter at the
same time, Your Honor.
‘‘The Court: Are you willing to observe the rule that
you not use profanity?
‘‘The Defendant: Yeah, if—of course, but I’m going
to be speaking probably in Mandarin or Spanish, so,
therefore, yeah, I’m going to need an interpreter
because you guys are not going to comprehend what
I’m saying because my vocabulary in English is not that
extensive. So, if that’s the case, I’m going to need an
interpreter because I’m going to speak to you in
Mandarin.
‘‘The Court: . . . [Y]ou know and I know that you
speak English.
‘‘The Defendant: Well, it’s limited, so I’m making it
clear on the record. But I could speak—I speak exten-
sive Mandarin.
‘‘The Court: It is clear to me . . . both by your past
behavior and your present behavior that you’re not will-
ing or able, I’m not sure which, I think it’s willing, to
observe the rules of the court and behave respectfully
so that this trial can proceed in an orderly manner.
‘‘The Defendant: Mm-hm.
‘‘The Court: And it’s clear to me that your intention
here is to disrupt these proceedings so that they don’t
proceed in any manner. Given that, I’m not going to
allow you to represent yourself because there’s no
doubt in my mind that it will continue to be the circus
that you’re trying to make it right now. So that—
‘‘The Defendant: It’s already a circus.
‘‘The Court: So, given your past proclivity in terms
of not letting counsel represent you and disrupting the
proceedings, I’m not going to allow you to represent
yourself, so Mr. Cates is your lawyer.
‘‘The Defendant: This guy don’t represent me. That’s
out of the question.
‘‘The Court: He is going to represent you.
‘‘The Defendant: No, he’s not.
‘‘The Court: So, now what needs to happen—
‘‘The Defendant: And what’s that?
‘‘The Court: Is, you need to get clothes on. Either
we’re going to offer you civilian garb so that you don’t
prejudice yourself in front of your jury—
‘‘The Defendant: This guy don’t represent me right
here.
‘‘The Court: Well . . . I’ve already made my ruling.
‘‘The Defendant: It’s not happening.
‘‘The Court: So, what you need to do is get—
‘‘The Defendant: What’s that?
‘‘The Court: You need to get—
‘‘The Defendant: This guy don’t represent right here.
Get out of my way, man.
‘‘The Court: So . . . here’s what you—
‘‘The Defendant: Get out of my way. . . . No. Get
out of my way. Get off me, man. Don’t touch me. Shut up.
‘‘The Court: We need to take him downstairs because
he’s thrown paper at Mr. Cates, he’s lifted, I think it
was a book, indicating he was about to throw that
before [the] marshals intervened. . . . [Y]ou’re going
to be taken downstairs. You’re welcome to come back
if you’re going to behave yourself and obey the rules
of the court. If you either refuse to come back or don’t
obey the rules, we’re going to continue to proceed with-
out you. You’re welcome to stay in the holding cell
we have for you so you can listen to and observe the
proceedings, and if at any point you indicate that you’re
willing to behave yourself, you’re welcome to return,
but marshals, at the present time, please take him down-
stairs.’’
Following the defendant’s removal from the court-
room, Cates moved to withdraw from the case, arguing
that his lack of communication with the defendant had
hampered his investigation and would continue to do
so as the case went forward. Although the court voiced
sympathy for the difficult position in which the denial
of the motion to withdraw would place Cates, it held
that it had no other choice but to require Cates to
continue to represent the defendant despite his lack
of cooperation because the defendant was unable ‘‘to
represent himself because he absolutely refuse[d] to
comply with the bare minimum required to appear in
court.’’ The court then proceeded with jury selection.
Following the luncheon recess, a marshal reported
to the court that the defendant ‘‘was banging on the
cell doors, yelling and screaming and complaining of
chest pain. He indicated that he had severe chest pains
and was asking for immediate medical attention.’’ The
court, expressly chose to ‘‘err on the side of caution
. . . [by] authoriz[ing] that [the defendant] be brought
to another facility so that he could receive medical
attention.’’ In light of the defendant’s absence from the
courthouse, the court suspended jury selection for the
remainder of the day and continued the case until the
next morning.
The next morning, on June 28, 2011, the defendant
appeared before Judge Alander to continue with jury
selection. The defendant sought to file motions with
the court, but was informed that he could not file any
motions on his own behalf because he was represented
by Cates as a result of his disruptive behavior the day
before. The defendant stated that he wanted to dismiss
Cates as counsel because there had been no communi-
cation between them and because Cates had not per-
formed any investigation, nor had he called or visited
the defendant. The court advised the defendant that it
would not fault Cates when, in actuality, it was the
defendant who had refused to communicate or cooper-
ate with him. The court denied the defendant’s motion
and asked the defendant if he wanted to stay in the
courtroom for the continuation of his jury selection.
The following exchange took place:
‘‘The Defendant: Come on—let’s go, man—
‘‘The Court: So, you do not want to remain, is that
correct?
‘‘The Defendant: Come on, I need medical atten-
tion, man.
‘‘The Court: Okay. . . . [L]et me know if you want
to return—
‘‘The Defendant: Please—
‘‘[Defense Counsel]: Medical attention on the mitti-
mus please.
‘‘The Defendant: I need medical attention right now.
‘‘The Court: And what’s the nature of the medical
issue?
‘‘The Defendant: My heart, I can’t breathe.
‘‘The Court: Okay, that was the same problem we
had yesterday—
‘‘The Defendant: Yeah, but right now I gotta be seen—
‘‘The Court: They checked you out at the prison, I
take it.
‘‘The Defendant: I’m havin’ the same problem right
now, so therefore get me medical attention, please.
‘‘The Court: If we could take—[the defendant] appar-
ently wants to go downstairs—
‘‘The Defendant: No, get me medical attention—
‘‘The Court:—since he’s facing the door—
‘‘The Defendant:—I’m feelin’ faint—
‘‘The Court: Marshal, if you could take him down-
stairs.
‘‘The Defendant: (Indiscernible.)
‘‘The Court: The record should reflect that [the defen-
dant] just laid down on the floor of the courtroom. We’ll
take a recess so [the defendant] can be returned to
his cell.’’
The court later summarized the defendant’s behavior
for the record as follows: ‘‘[A]fter [the defendant]
decided to lay prostrate on the floor, the marshals had
to drag him out of the courtroom; he refused to get
back on his feet. He was also complaining, as he did
yesterday, of chest pains. It’s my understanding that he
was checked out at the correctional facility and they
found no concern, no medical issue with [the defen-
dant], which is why he was transported back here today.
‘‘It’s my belief that he’s complaining of chest pain
once again as an effort to further disrupt this proceed-
ing. This has been my experience with him from the
very beginning, that [the defendant] does whatever it
takes, in his mind, to attempt to disrupt these proceed-
ings, and that is part and parcel of his efforts to do
that. The marshal indicated to me [that] the correction
officers wanted to take him back to the facility because
of his statements with [respect to] chest pain.
‘‘I said I didn’t want him taken back to the facility
because I would have to—I would be concerned about
suspending jury selection, and that he needed to be
medically checked out here and remain in the building
during jury selection. The marshal also indicated to me
that yesterday he was banging on the bars, and yelling
and screaming and he was very disruptive downstairs,
and the marshal was concerned that that might happen
again, and I told the marshal to let me know if that
occurred and we can proceed accordingly.’’
Thereafter, during voir dire, a marshal informed the
court that the defendant was acting out in his cell,
kicking and screaming, and continuing to complain of
chest pains. The correction officers asked to transport
the defendant back to the correctional facility for a
medical examination. The court responded, ‘‘It’s clear
to me [that] he does not need medical attention; we
went through this exact same behavior yesterday. He
didn’t, when he was checked out, he didn’t need any
medical attention, he wasn’t admitted to any medical
facility. It’s clear to me that . . . this is just further
efforts on his part to disrupt this trial, as I’ve said
already. So, I’m going to continue with jury selection.
. . . He’s clearly waived his right to be present, and
. . . this is just a ruse to be taken back to the correc-
tional facility. . . . There’s absolutely no doubt that
this is intentional conduct on his part so that he doesn’t
have to be here.’’ The court went on to state that ‘‘[t]his
is all about the show. [The defendant] likes to come to
court and put on a show and attempt to be in control
of the proceedings and do it his way. . . . [H]e likes
to come to court to see how far he can push things and
then when things don’t get pushed to the degree he’d
like them to be pushed, he decides [that] he doesn’t
want to participate anymore; that’s my view of what’s
going on here.’’
Later that day, following the luncheon recess, Cates
asked the court to order a competency evaluation of
the defendant pursuant to § 54-56d. The court promptly
engaged in the following, extended colloquy with
defense counsel and the state’s attorney regarding the
defendant’s competency to stand trial:
‘‘The Court: So, you have some concerns about [the
defendant’s] mental competency?
‘‘[Defense Counsel]: Well, I mean, given his actions,
he—I do have some concerns because even though he
seems to be—a lot of this stuff maybe is premeditated,
but it’s not rational. He’s not assisting with his—his
case, and I can’t—I can’t determine whether that’s
because he doesn’t want to or whether it’s because
he can’t.
‘‘The Court: Am I correct in that the entire basis for
your request has to do with his behavior in court?
‘‘[Defense Counsel]: No, it [has] to do with his behav-
ior the two times I have visited him—
‘‘The Court: Okay.
‘‘[Defense Counsel]:—the time my intern—or my
investigator tried to visit with him and his behavior
here in court.
‘‘The Court: I’m sorry. Is that because he refused to
discuss this case or cooperate with you or the investiga-
tor? Did he say anything to cause you to be concerned
about his mental competency other than his refusal
to cooperate?
‘‘[Defense Counsel]: Based on that alone, I wouldn’t
ask for the evaluation, but that—the totality of that
combined with some of the stuff that he was saying
yesterday—needing a Mandarin interpreter—
‘‘The Court: But—but could you answer my question?
I’m not sure—
‘‘[Defense Counsel]: No, it’s not based on that alone.
‘‘The Court: Okay. But am I correct that it’s—it’s not
that he said anything particular to you outside of court
that causes you to question his mental competency?
‘‘[Defense Counsel]: No, it’s not.
‘‘The Court: Okay. So, it’s based upon his refusal to
cooperate and his behavior in court?
‘‘[Defense Counsel]: And his behavior in court and
the way he behaved when I visited—tried to visit him.
‘‘The Court: Yeah, I just want to make sure because
I’ve obviously observed his behavior in court; I just
want to make sure that you don’t know something I
don’t know in order for me to rule appropriately on
this request.
‘‘[Defense Counsel]: Well, hopefully, I’m not in viola-
tion of any Practice Book rules, but you know every-
thing. I made you privy earlier today to what I know,
Your Honor.
‘‘The Court: Okay. But—okay. Mr. [prosecutor], do
you have a view on this?
‘‘[The Prosecutor]: I can indicate for background pur-
poses to the court on July 19, 2010, [the defendant]
refused to appear in court and that was consistent with
prior appearances, where he would refuse to appear in
court. After that refusal to appear in court and based
on his fairly consistent refusal to appear in court, Judge
Strackbein ordered a § 54-56d evaluation, and that was
ordered on my motion, based on his refusal to come
up and appear.
‘‘He was evaluated, there was a hearing held before
Judge D’Addabbo on September 20, 2010. For the pur-
pose of that hearing, [the defendant] was represented
by Attorney Chong. Dr. Storey testified in connection
with that. The report of the forensic evaluation team
was admitted, and Storey testified that both prongs
of the test were met by [the defendant]. And Judge
D’Addabbo found that [the defendant] was capable of
assisting in his defense and, in fact, was able to under-
stand the nature of these proceedings.
‘‘I will indicate that on that day, on September 20,
2010, in connection with that hearing, my notes indicate
that, again, [the defendant] refused to appear in court
for that hearing. Subsequently, on October 26, after
Judge D’Addabbo made his findings, [the defendant]
did agree to appear in court, and he was canvassed in
connection with pro se representation by Judge
Strackbein. He did some other things on the record,
and the case was then put on the trial list.
‘‘I’ve had the same opportunity to observe [the defen-
dant] in court that Your Honor has. It does seem to me
that if there is a lack of him assisting [defense counsel],
that is not a function of [the defendant]’s inability to
assist [defense counsel], it’s a function of his unwilling-
ness to assist [defense counsel], and that’s an unwilling-
ness that [the defendant] has manifested throughout
the course of these proceedings. I will also note that—
‘‘The Court: Even prior to the evaluation?
‘‘[The Prosecutor]: Even prior to—yes, sir, yes, sir.
And I will also note that from the state’s perspective,
[the defendant] has been very active in attempting to
file, and at the time he was pro se, filing legal motions
and things of that nature. It does strike me that he has
a very good understanding of the proceedings and the
nature of the proceedings against him. So, from the
state’s perspective, [the defendant] is, to be blunt, sim-
ply trying to manipulate and malinger and disrupt the
proceedings in any fashion that he can.
‘‘The Court: Did you want to be heard any further,
[defense counsel]?
‘‘[Defense Counsel]: Just a small bit. And I have the
greatest respect for the [prosecutor]’s opinion, and I—
and I find myself moving in that direction, too, but
I’m not confident—I don’t think that I—I’m not—I’m a
lawyer, not a psychologist, I can’t make that determina-
tion. I understand—I know there was an evaluation
done before, but that was long before I came into this
case, and so, going on—just on my experience, I’m just
not comfortable saying that he is malingering, maybe
he is, but—and if I was a betting man, maybe I would—
I might take that bet, but I don’t—but this is liberty
and liberty—is at stake, and—and I—I just don’t feel
comfortable—making that conclusion myself, Your
Honor.
‘‘The Court: No. I understand. . . . Does anybody
want to be heard any further?
‘‘[Defense Counsel]: Not on this motion—
‘‘The Court: Okay.
‘‘[Defense Counsel]:—but on another motion.
‘‘The Court: Now, let me deal with this motion first.
I’ve reviewed—did you, Mr. [prosecutor] want to be
heard?
‘‘[The Prosecutor]: No, Your Honor.
‘‘The Court: I reviewed the evaluation report, and in
August, it was the unanimous view of the evaluators
that [the defendant] was—was competent to stand trial.
He was both able to understand the nature of the pro-
ceedings against him and to assist in his own defense.
And as I understand it, correct me if I’m wrong, [defense
counsel], are you concerned with both prongs?
‘‘[Defense Counsel]: I’m concerned with both prongs,
Your Honor.
‘‘The Court: Okay.
‘‘[Defense Counsel]: If I may, just—[because] we’ve
been talking about an ability to assist, but ability to
understand the proceedings. Yesterday, you tried—you
tried, Your Honor, to canvass him on—on the—on the
pro se, he wanted to represent himself as to following
the rules, he seemed to kind of get it, but then, either,
I mean, as—as the [prosecutor] mentioned, maybe he
is malingering, but on the other hand, he could not
demonstrate the ability to understand two simple rules,
be polite and don’t use profanity.
‘‘The Court: Yeah. There is no doubt in my mind
that [the defendant] is competent and that this is—this
behavior is intentional behavior on his part to disrupt
the proceedings, and that’s been crystal clear to me
from his—his behavior. And it appears that, at least
based on this evaluation, that his refusal to cooperate
with you is based upon his distrust of lawyers. He basi-
cally thinks we’re all in cahoots with the [prosecutor],
including me, all judges, and that we’re just out to get
him convicted.
‘‘And I think that’s why he’s seeking to disrupt these
proceedings, is his feelings that the end result is preor-
dained, so what’s the point in letting it go to a conclu-
sion. And that every day he comes in here in a further
effort to disrupt the proceedings, he just tries something
new and different every day in the hopes to get this off
track. So, based upon the behavior I’ve seen, I don’t
find it to be evidence of—of incompetence.
‘‘[Defense Counsel]: May I say just one further thing—
‘‘The Court: Sure.
‘‘[Defense Counsel]:—and then I’ll—I’ll rest.
‘‘The Court: Yeah, go ahead.
‘‘[Defense Counsel]: This is a very defensible case,
Your Honor. He has the whole file; he has more than
I have that he’s carrying around with him. He actually
has more than I have, and what I have, there’s a lot—
it’s not a—a foregone conclusion, and anybody with
any kind of rational ability, I think, would see that.
‘‘And, I mean, I—I take your point, Your Honor, that
he’s suspicious [that] we’re all in cahoots, we’re all out
to—to—to get him, but on the other hand, he—if he
had the ability to follow your instructions, Your Honor,
and if he could understand the documents that I have
that I know he has, he would see that this is a defensible
case, and if he didn’t trust me, he would—he would’ve
made it possible for himself to, yesterday, to go forward
pro se with me as standby.
‘‘The Court: But I think the point you’re missing that
is clear to me from this evaluation is, he thinks the
whole system is racist, and that we’re all out to get him,
and that we’re going to convict him even though he’s
innocent. So, if that’s your view, then it would be
rational to try to disrupt these proceedings and not let
them go to conclusion because we’re all just out to get
him anyway.
‘‘And I don’t find that position to be one rooted in
mental illness, that’s his worldview, and that’s his view
of how he’s been treated by the criminal justice system
from the very beginning. Given that view, I think his
behavior is very rational and not the product of—of
mental illness.
‘‘[Defense Counsel]: May I ask if that—that was—I
didn’t have a chance to review the report, Your Honor.
Is that worldview demonstrated in—
‘‘The Court: Well, let me just, I think, quote parts of
it from—for you, that may be helpful, and I’ll certainly
give you a chance to look at it—
‘‘[Defense Counsel]: Oh, I would appreciate that.
‘‘The Court: I thought you had seen it.
‘‘[Defense Counsel]: I’m sorry, I haven’t, I could’ve
made better efforts.
‘‘The Court: [The defendant] made statements indi-
cating that he believes the legal system and these evalu-
ators were racist. And there were some other
statements in here, and also with respect to the—let
me see. [The defendant] stated the judge works in col-
laboration with other state’s attorneys and attorneys.
When asked if the judge is against him, he said nine
times out of ten. When asked if that’s how it’s supposed
to be, he stated, not according to the constitution.
‘‘If I thought there was even a possibility that he
was incompetent, I would not hesitate to order a—a
competency evaluation, but based upon this evaluation
and what I’ve observed, I do find and do believe that
this is all intentional behavior, as I’ve said repeatedly,
to disrupt these proceedings.
‘‘[Defense Counsel]: Thank you for—
‘‘The Court: Okay.
‘‘[Defense Counsel]:—for hearing the motion, Your
Honor.
‘‘The Court: And he’s doing a great job of slowing us
down, but he hasn’t disrupted them totally yet. Anything
else? Did you have something else?
‘‘[Defense Counsel]: None, Your Honor.’’
For the remainder of the day, the court proceeded
with jury selection. The parties completed jury selection
for this case on June 30, 2011, without the presence of
the defendant.3
On July 25, 2011, when the defendant appeared in
the courtroom for the start of the evidentiary portion
of his trial, Judge Alander warned him that he must
refrain from disruptive behavior in order to exercise
his right to be present in the courtroom. The defendant
then objected to the trial going forward, claiming that
he had never elected to be tried by a jury, and instead
invoked his right to be tried by the court. After the
defendant spoke with Cates about his decision to
choose a bench trial, the court asked the defendant
several questions to ensure that he understood his right
to a jury trial, that a jury had already been selected and
was ready to proceed, that he could not change his
mind once he elected to be tried by the court instead
of a jury, and that trial would commence that morning.
The court found that the defendant’s decision to waive
his right to a jury trial, and instead to proceed with a trial
before the court, was made knowingly and voluntarily.
Judge Alander then dismissed the jury and recused him-
self as the trial judge in this case upon realizing that
the state had filed a Part B information against the
defendant, which would have resulted in Judge Alander
acting as both the fact finder and the trial judge in the
defendant’s court trial.4
On July 27, 2011, evidence in the defendant’s trial
began before Judge D’Addabbo, who had been assigned
to the case in lieu of Judge Alander. The court began by
addressing the state’s motion to use reasonable physical
restraints on the defendant in light of his past verbal and
physical threats toward defense counsel. The defendant
objected to the use of restraints, but the court granted
the state’s motion and ordered the defendant to remain
restrained in leg shackles and handcuffs. The state then
proceeded with its case-in-chief.5 The defendant was
present in the courtroom throughout the trial, wore
appropriate attire,6 and never acted disruptively.
On the third day of trial, August 2, 2011, the defendant
testified in his own defense. Before he took the witness
stand, he was engaged by the court in the following
canvass as to his decision to testify, throughout which
he was respectful and nondisruptive:
‘‘The Court: Okay. Before [the defendant] takes the
stand—what I normally do . . . with every defendant
is to make sure that they understand what is occurring.
So, I’m going to ask you some questions before you
take the stand. All right, sir?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: All right. First question, have you taken
any medication, drugs or alcohol within the last twenty-
four to forty-eight hours that would in any way affect
your ability to think, to hear, to comprehend, to
understand?
‘‘The Defendant: No, Your Honor.
‘‘The Court: Okay. Have you had enough time to speak
with your attorney, Mr. Cates, concerning taking the
stand and testifying in this case, and obviously the—
the option of not testifying in this case?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: Do you need any more time to do that?
‘‘The Defendant: No, Your Honor.
‘‘The Court: Okay. Now, you understand that when
you take the stand and testify in this case, it’s—in any
case, you can’t get on the stand and say, I’ll answer my
attorney’s questions, but then, when the cross-examina-
tion comes, I’m not going to answer them. You under-
stand you have to answer questions that are put forward
by both attorneys? You understand that?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: Okay. And do you understand [that] if
you did take the stand, obviously the court will consider
credibility just as any other witness that takes the stand,
including that you have an interest in the outcome of
the case? You understand that?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: And if you didn’t take the stand, the court
would not use the term hold it against you, but basically
make its decision solely on the evidence that’s pre-
sented in the trial. Do you understand that?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: Having—you indicated to me that you’ve
had enough time to talk to Mr. Cates about this; is [it]
your desire to take the stand and testify in this case?
‘‘The Defendant: Yes.
‘‘The Court: Is anyone forcing you or threatening you
in any way to do that?
‘‘The Defendant: No, Your Honor.
‘‘The Court: So, it’s an act of your own free will?
‘‘The Defendant: Yes, Your Honor.’’
The defendant proceeded to testify on his own behalf
and was responsive to and respectful of both counsel
and the court throughout his direct and cross-exami-
nation.
On August 11, 2011, the court found the defendant
guilty of aggravated sexual assault in the first degree.
The defendant’s sentencing was scheduled to take place
on December 1, 2011, before Judge D’Addabbo, but it
was brought to the court’s attention that the defendant
was complaining of chest pains and requested medical
attention. The prosecutor advised the court that the
defendant ‘‘has a history of malingering symptoms to
avoid court attendance. That history includes prior trips
during the pendency of this case to the emergency room
with similar nonspecific complaints of chest pains that
have resulted in him being immediately discharged from
the emergency room after medical evaluation and found
nothing wrong, as well as an incident of him collapsing
in the courtroom, which led, again, to a trip to the
emergency room.’’ In an abundance of caution, the court
ordered the defendant to be examined and rescheduled
his sentencing for December 6, 2011.
On December 6, 2011, when the defendant’s sentenc-
ing took place before Judge D’Addabbo, the defendant
was present in the courthouse but refused to leave the
lockup to appear before the court. Cates informed the
court that the defendant did not want to be present for
sentencing, that no one was forcing or threatening him
not to be present, and that he seemed calm and in his
right mind. The court concluded that the defendant
‘‘does not want to be in front of the court, he wants to
absent himself. That is an intentional act on his part.
. . . [T]he court finds an intentional act on the defen-
dant’s part to absent himself from the sentencing hear-
ing today. And, therefore, also a voluntary waiver on
his part not to be heard as it relates to sentencing.’’
The court also noted that the defendant had ‘‘refused
to cooperate with the preparation of the presentence
investigation . . . so they’ve attached . . . a previous
presentence investigation.’’ The court heard argument
from both counsel and then proceeded to sentence the
defendant to a term of twenty years’ imprisonment, to
be served consecutively to his present sentence, plus
lifetime registration as a sex offender. This appeal
followed.
II
We begin with the undisputed principle 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 . . . . General Stat-
utes § 54-56d (a) codified this constitutional mandate,
providing in relevant part: A defendant shall not be
tried, convicted or sentenced while the defendant is
not competent. [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.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Paulino, 127 Conn. App.
51, 62, 12 A.3d 628 (2011).
‘‘Although § 54-56d (b) presumes the competency of
defendants, when a reasonable doubt concerning the
defendant’s competency is raised, the trial court must
order a competency examination. . . . Thus, [a]s a
matter of due process, the trial court is required to
conduct an independent inquiry7 into the defendant’s
competence whenever he makes specific factual allega-
tions that, if true, would constitute substantial evidence
of mental impairment. . . . Substantial evidence is a
term of art. Evidence encompasses all information
properly before the court, whether it is in the form of
testimony or exhibits formally admitted or it is in the
form of medical reports or other kinds of reports that
have been filed with the court. Evidence is substantial
if it raises a reasonable doubt about the defendant’s
competency . . . . The trial court should carefully
weigh the need for a hearing in each case, but this is
not to say that a hearing should be available on demand.
The decision whether to grant a hearing requires the
exercise of sound judicial discretion.’’ (Citations omit-
ted; footnote added; internal quotation marks omitted.)
State v. Johnson, 253 Conn. 1, 21–22, 751 A.2d 298
(2000).
The defendant here claims that his conviction should
be reversed and the case remanded for a new trial
because Judge Alander’s independent inquiry into his
competency to stand trial was inadequate and violated
his state and federal constitutional right not to be
deprived of his liberty without due process of law. Spe-
cifically, the defendant claims that the court erred in
denying his attorney’s request for a competency evalua-
tion because the only input it sought and received on
that subject came from defense counsel and the prose-
cutor, without a personal canvass of the defendant to
determine if such an evaluation was warranted. The
state disagrees, contending that the court adequately
performed an independent inquiry into the defendant’s
competency by engaging in a lengthy colloquy with both
defense counsel, who had raised the issue, and the
prosecutor, during which both counsel apprised the
court of all the evidence that had come to their attention
that bore on the issue of the defendant’s possible incom-
petency since the time of the defendant’s prior compe-
tency evaluation. The state claims that the defendant’s
argument necessarily fails because defense counsel did
not articulate any independent factual basis, which,
if true, would constitute substantial evidence of the
defendant’s mental impairment. We agree with the state.
‘‘We review the court’s ruling on a motion for a com-
petency evaluation under the abuse of discretion stan-
dard. . . . In determining whether the trial court [has]
abused its discretion, this court must make every rea-
sonable presumption in favor of [the correctness of] its
action. . . . Our review of a trial court’s exercise of
the legal discretion vested in it is limited to the questions
of whether the trial court correctly applied the law and
could reasonably have reached the conclusion that it
did.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Kendall, 123 Conn. App. 625, 651, 2 A.3d
990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).
The court here did not abuse its discretion by denying
the defendant’s motion for a competency evaluation
because it was reasonable for it to conclude that the
defendant had failed to raise a ‘‘reasonable doubt con-
cerning the defendant’s competency . . . .’’ (Internal
quotation marks omitted.) State v. Johnson, supra, 253
Conn. 21. Specifically, after defense counsel made his
§ 54-56d motion, the court inquired of him, and of the
prosecutor, about their observations of and interactions
with the defendant both inside and outside of the court-
room. Its evident purpose in conducting these collo-
quies, which it pursued with great care, was to
determine if counsel had witnessed any conduct by the
defendant other than that which he had openly engaged
in before the court itself, prior and subsequent to the
court’s initial finding that he was competent to stand
trial, which might otherwise raise a reasonable doubt
about his competence. The court clearly was seeking
to learn of conduct other than the noncooperation with
counsel or the court, the use of profanity and the refusal
to wear clothing, which it observed over the course of
several court appearances, which might suggest confu-
sion, thought disturbance, mental disorganization or
other forms of mental illness impairing the defendant’s
ability to understand his legal predicament and assist
in his own defense.
Before ruling on defense counsel’s motion for a sec-
ond competency evaluation, the court took great pains
to assure itself that the only basis for the motion was
the same pattern of disruptive behavior which it had
observed in open court and come to regard as an inten-
tional and fully rational effort by the defendant to
obstruct his prosecution. The court thus questioned
counsel on this subject in an extended colloquy which
revealed that apart from disruptive behavior of the sort
it had witnessed, there was no other basis known to
counsel for questioning the defendant’s competency.8
In those circumstances, absent any basis for ques-
tioning the defendant’s competency other than his pat-
tern of disruptive conduct, the court was not required
to conduct any further inquiry on that subject, either
with counsel or with the defendant personally, before
ruling on counsel’s motion for a second competency
evaluation.
Despite these colloquies with counsel, the defendant
claims that the court failed to conduct an adequate
inquiry to determine if a competency evaluation was
warranted because it denied the motion without can-
vassing the defendant personally. The defendant claims
that the court was required to canvass him, and not
just inquire of his counsel, in order to ascertain if a
competency evaluation was warranted in this case. In
making this argument, the defendant relies on our
recent opinion in State v. Dort, 138 Conn. App. 401,
411, 51 A.3d 1186, cert. granted, 307 Conn. 931, 55 A.3d
769 (2012).9 In Dort, we reversed the judgment of the
trial court following its denial of the defendant’s request
for a competency examination because ‘‘the court failed
to conduct an appropriate inquiry into the defendant’s
competence . . . [which] violated the defendant’s due
process rights.’’ Id., 412. As in the present case, the
defendant in Dort had been found competent to stand
trial following an initial competency evaluation. There-
after, before the start of jury selection, his counsel
requested a second competency evaluation, which was
denied by the court following a colloquy with defense
counsel and a review of the previous competency evalu-
ation report. Id., 407.
The trial court in Dort, however, ‘‘did not make any
reference to the defendant’s behavior or any relevant
communications with the defendant . . . [and] refused
the defendant the opportunity to address the court on
this issue, which would have given the court an opportu-
nity to make these key observations.’’ Id., 412. In the
present case, by contrast, the court specifically refer-
enced the defendant’s behavior,10 which it had observed
firsthand on multiple occasions, and at no time refused
to provide the defendant an opportunity to address
the court on the issue of his competency. In fact, the
defendant had voluntarily absented himself from the
courtroom due to his disruptive behavior, and thus the
court’s inability to canvass him directly was a situation
created by his own design. Moreover, contrary to the
defendant’s assertion, our holding in Dort does not
stand for the proposition that a trial court is required
to canvass the defendant personally as part of its inde-
pendent inquiry into his competency to stand trial.11
The defendant also claims that the court improperly
relied on his August 24, 2010 competency evaluation
report when denying his request for a second compe-
tency evaluation because that evaluation had occurred
nearly one year before his counsel’s request for a second
evaluation. The defendant, however, ‘‘has not cited, and
we have not found, any case law that establishes a
bright line rule as to when a competency report
becomes stale.’’ State v. Mordasky, 84 Conn. App. 436,
447, 853 A.2d 626 (2004). Rather, the court’s inquiry
when deciding whether to order another competency
evaluation is ‘‘whether the defendant’s condition has
materially changed since a previous finding of compe-
tence.’’ Id. The defendant did not produce any evidence
that his condition had changed at all, let alone materi-
ally, since the date of his first competency evaluation.
Moreover, as previously discussed, the August, 2010
competency evaluation was only one source of informa-
tion upon which the court relied in making its decision.
Because the defendant failed to raise a ‘‘ ‘reasonable
doubt concerning [his] competency’ ’’; State v. Johnson,
supra, 253 Conn. 21, we conclude that the court properly
denied counsel’s request for a second competency eval-
uation.
The record in this case fully supports the court’s
determination that the defendant’s behavior was not
the result of any incompetence to stand trial, but rather
was the result of his own deliberate attempt to disrupt
and delay the proceedings against him. The defendant
calmly, coherently, and appropriately answered Judge
Alander’s questions regarding his decision to waive his
right to a trial by jury and his election instead to be
tried by the court. This cooperative and appropriate
behavior exhibited by the defendant demonstrates that,
when he chose to do so, he was capable of conducting
himself in a nondisruptive manner and that he was
competent to stand trial. See State v. Murray, 28 Conn.
App. 548, 554, 611 A.2d 916 (rejecting claim that trial
court erred in not ordering competency hearing because
‘‘defendant’s behavior in lying on the floor of the court-
room was viewed not as an act of incompetency but
rather as a maneuver to attempt to dismiss his counsel
and delay the trial’’), appeal dismissed, 225 Conn. 524,
624 A.2d 377 (1993); State v. Johnson, 22 Conn. App.
477, 489, 578 A.2d 1085 (defendant’s ‘‘obstreperous,
uncooperative or belligerent behavior did not obligate
the court to order a competency examination’’ where
record showed he had ‘‘ability to cooperate but did not
want to do so’’), cert. denied, 216 Conn. 817, 580 A.2d
63 (1990).
At the conclusion of its ruling on the motion for a
second competency evaluation, the court so much as
stated that if ‘‘there was even a possibility that he was
incompetent, I would not hesitate to order . . . a com-
petency evaluation, but based upon this evaluation and
what I’ve observed, I do find and do believe that this
is all intentional behavior, as I’ve said repeatedly, to
disrupt these proceedings.’’ On the basis of the evidence
presented to it, the court determined that the defen-
dant’s disruptive behavior did not constitute substantial
evidence of his mental illness so as to raise a reasonable
doubt as to his competency. That determination cannot
be said to have been an abuse of discretion. Rather,
Judge Alander’s interactions with the defendant and
his patience with his disruptive behavior were both
respectful and tolerant. He conducted a thorough and
thoughtful independent review of counsel’s arguments
and the prior competency evaluation report to conclude
that a second competency evaluation was not war-
ranted in this case.
For the foregoing reasons, we conclude that the
defendant has not met his burden of showing that, at
the time he moved for a competency examination, the
court had before it specific factual allegations that, if
true, would have constituted substantial evidence of
mental impairment. The record before us does not sup-
port the conclusion that the court abused its discretion
by denying the defendant’s second motion for a compe-
tency evaluation.
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 (c) provides: ‘‘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.’’
2
The public defender’s office previously had represented the victim in
the case on two unrelated matters, and thus Eddy argued that because of
his knowledge of confidential information about the victim, a special public
defender should be appointed to represent the defendant so as to avoid a
conflict of interest. We note that in accordance with our policy of protecting
the privacy interests of the victims of sexual abuse, we decline to identify
the victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
3
The defendant had been transported from the correctional facility to the
courthouse on June 30, 2011, but refused to present himself in the courtroom.
The court also noted that the case flow coordinator, Lori Warshol, reported
that she had spoken to prison officials on June 28, 2011, following his
complaints of chest pain, and ‘‘they indicated to her that [the defendant]
did not complain of any physical ailment when he arrived back at the prison,
and that he did not need any medical treatment when he arrived back at
the prison from the courthouse.’’
4
We note that the state decided not to go forward with trial on the Part
B information.
5
The presentation of evidence took place over three days, during which
time the state called six witnesses, including the victim, and introduced two
exhibits. The defense also called six witnesses, including the defendant,
and introduced two exhibits.
6
The court noted that the defendant wore a suit and tie at trial.
7
Our Supreme Court has clarified that an ‘‘independent inquiry’’ by the
court into the defendant’s competency is distinguishable from the ‘‘indepen-
dent competency examination of the defendant as provided by § 54-56d (d).
. . . [T]he independent inquiry required by due process whenever an allega-
tion of incompetence has been made is a hearing before the court, not
an independent psychiatric evaluation as provided by statute.’’ (Citation
omitted; internal quotation marks omitted.) State v. Ross, 269 Conn. 213,
271–72, 849 A.2d 648 (2004). An independent psychiatric evaluation is
ordered only when ‘‘a reasonable doubt is raised regarding the defendant’s
competency,’’ when the defendant ‘‘present[s] substantial evidence, not
merely allegations, that he is incompetent.’’ (Internal quotation marks omit-
ted.) Id., 272.
8
During his colloquy with the court, although defense counsel noted that
he had observed disruptive behavior by the defendant outside of court, he
clarified as follows that his request for a second competency evaluation
was based on the same pattern of disruptive behavior that the court had
previously observed:
‘‘The Court: Okay. But am I correct that it’s—it’s not that he said anything
particular to you outside of court that causes you to question his mental com-
petency?
‘‘[Defense Counsel]: No, it’s not.
‘‘The Court: Okay. So, it’s based upon his refusal to cooperate and his
behavior in court?
‘‘[Defense Counsel]: And his behavior in court and the way he behaved
when I visited—tried to visit him.
‘‘The Court: Yeah, I just want to make sure because I’ve obviously observed
his behavior in court; I just want to make sure that you don’t know something
I don’t know in order for me to rule appropriately on this request.
‘‘[Defense Counsel]: Well, hopefully, I’m not in violation of any Practice
Book rules, but you know everything. I made you privy earlier today to
what I know, Your Honor.
‘‘The Court: Okay.’’
9
Our Supreme Court has granted certification in Dort, inter alia, on the
question of whether we properly held that the trial court conducted an
inadequate independent inquiry into the defendant’s competency when it did
not canvass the defendant personally as part of that inquiry. ‘‘By operation of
Practice Book § 84-3, [when an appeal is on certification to our Supreme
Court], a stay on the judgment of this court remain[s] in effect until our
Supreme Court render[s] its final determination of the cause . . . .’’ State
v. Oral H., 125 Conn. App. 276, 280, 7 A.3d 444 (2010), cert. denied, 300
Conn. 902, 12 A.3d 573, cert. denied, U.S. , 131 S. Ct. 3003, 180
L. Ed. 2d 831 (2011). Thus, Dort lends little precedential support to the
defendant’s argument.
10
Specifically, the court noted that ‘‘I’ve obviously observed his behavior
in court,’’ and that ‘‘this behavior is intentional behavior on his part to
disrupt the proceedings, and that’s been crystal clear to me from . . . his
behavior.’’ In finding that ‘‘every day he comes in here in a further effort
to disrupt these proceedings, [and that] he just tries something new and
different every day in the hopes to get this off track,’’ the court concluded
that ‘‘based upon the behavior I’ve seen, I don’t find it to be evidence . . .
of incompetence.’’
11
Although in Dort, we concluded that the trial court had failed to conduct
an adequate independent inquiry into the defendant’s competency, in part
because it did not canvass or speak directly with the defendant, it cannot
be inferred from that holding that a trial court is required to canvass the
defendant personally as part of its independent inquiry into his competency
to stand trial. The specific factual background of Dort and the court’s inde-
pendent inquiry are distinguishable from those in the present case. Here,
Judge Alander had observed the defendant’s disruptive behavior and had
spoken directly with him at length on four occasions prior to defense coun-
sel’s request for a competency evaluation. Also unlike in Dort, defense
counsel here never asked the court to canvass the defendant personally or
to allow him to make a statement on his own behalf to the court. Moreover,
the trial court in Dort failed to make a record of its observations of the
defendant’s behavior and denied counsel’s request for a competency evalua-
tion without further comment. Here, quite to the contrary, the court made
an extensive record of its observations of the defendant’s behavior, and
denied counsel’s request for a competency evaluation only after engaging
in a detailed colloquy with counsel for both parties, reviewing the previous
competency report, and making its own findings about the defendant’s com-
petency.