DocketNumber： 15279
Citation Numbers： 237 Conn. 633
Judges： Berdon, Borden
Filed Date： 7/9/1996
Status： Precedential
Modified Date： 9/8/2022
The principal issue in this certified appeal is whether the Appellate Court properly concluded that the defendant was entitled to a new trial because the trial court had failed to comply adequately with Practice Book § 961 (3)
The jury could reasonably have found the following facts. On May 26, 1992, while Hartford police officer Stephen Miele was on foot patrol near the train station in downtown Hartford, he stopped an individual who fit the description of a robbery suspect being sought by the police. Because the suspect was uncooperative, Miele requested assistance and was soon joined by police officer Laura Buyak. While Miele was in the process of arresting the robbery suspect, his attention was diverted to the defendant, who was standing at the top of the train station stairway shouting something approximating the following: “Fuck you, you motherfucking cops. You’re all cocksuckers. You’re all out to get me.” The defendant was also screaming such things as “[f]ucking cops,” causing other people to stop and see what was occurring. Dennis Connolly, who was working in a store across the street from the train station, heard a commotion outside and, when he went to investigate, saw the defendant standing at the top of the stairs, shouting at Miele and Buyak, using the language previously described. Connolly was annoyed and alarmed by the defendant’s language.
After placing the robbery suspect in Buyak’s patrol car, Miele and Buyak approached the defendant and attempted to calm him down. Because Miele thought that the defendant might have been a friend of the
At the defendant’s arraignment on May 27, 1992, the court, Pellegrino, J., proposed to appoint the public defender to represent the defendant. The defendant informed the court, however, that he intended to represent himself. At his next two pretrial appearances, on June 10,1992,
On July 21,1992, assistant public defender Ross Delaney appeared before Judge Kocay on behalf of the defendant and requested a continuance to confer with the defendant, which the court permitted. The following day, Delaney again appeared for the defendant and argued a motion for bond reduction before Judge Kocay. When asked if he was the defendant’s attorney of record, Delaney responded that he was. Delaney also stated, however, that he was acting as standby counsel. During the bond reduction hearing, the state recounted the facts of the case, maintaining that the defendant had been screaming and swearing at police officers, and then had engaged in a fight with them. Delaney then said that he had discussed the case with the defendant, who had presented a different version of the incident.
At the defendant’s next appearance, on November 18, 1992, the court, Espinosa, J., informed the defendant that his case was ready for trial and asked the defendant if he had counsel. After the defendant told Judge Espinosa that he intended to represent himself, she questioned him in order to determine whether to accept his waiver of counsel.
After the luncheon recess, the state handed copies of its two long form substitute informations to the defendant, and the defendant was put to plea on the charges involved in this appeal. The clerk read the long form information involved in this case, which spelled out the statutory elements of the charges of assault of a peace officer and breach of the peace.
At trial, the defendant represented himself, with Delaney acting as standby counsel. The jury found the
The defendant appealed to the Appellate Court. In the Appellate Court, the defendant claimed that “the
The Appellate Court considered the defendant’s claim under § 961 (3) pursuant to the plain error doctrine;
The Appellate Court concluded that the trial court’s canvass of the defendant was flawed because the court had not advised him of the specific statutory elements of the crimes charged. Id., 506. “In an attempt to comply with § 961 (3), the court did advise the defendant of the penalties that he faced in light of the state’s charges, but it did not advise him of the elements of those crimes so as to inform him adequately of the nature of the charges against him.” Id. In response to the state’s argument that the trial court was entitled to presume that the defendant’s counsel had explained to him the nature of the offenses in sufficient detail, the Appellate Court read the record to disclose that “the defendant proceeded without the assistance of counsel from the inception of his court appearances. We cannot presume, therefore, that the defendant’s attorney had explained the nature of the offenses to the defendant.” Id., 507. The court concluded, accordingly, that there had been “ ‘substantial defective compliance’ ” with § 961 (3). Id. Accordingly, the Appellate Court reversed the judgment of conviction and remanded the case for a new trial. Id., 509. This certified appeal by the state followed.
We first address the certified issue, namely, whether the Appellate Court properly concluded that the defendant’s waiver of counsel and election to proceed pro se was invalid. The state claims that the Appellate Court improperly concluded that the trial court did not comply adequately with the requirements of § 961 (3). The state takes issue with the Appellate Court’s decision on two grounds. First, the state argues that the Appellate Court improperly construed the provision in § 961 (3) that the defendant be advised of the nature of the charges against him to require the trial court to advise the defendant of the specific elements of the crimes with which he was being charged. Second, the state contends that the Appellate Court improperly concluded that the trial court could not presume that the defendant’s counsel had advised him of the nature of the charges. The state further argues that all of the remaining requirements of § 961 had been satisfied. We agree with the state.
A
We first consider the Appellate Court’s reliance, under the plain error doctrine, on what it held to be the trial court’s noncompliance with a mandatory rule of practice, namely, § 961 (3). To the extent that the Appellate Court based its conclusion on the effect of § 961 (3) solely as a mandatory rule of practice, apart from its constitutional underpinnings,
The right to counsel and the right to self-representation “present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins. . . . Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel.” (Citation omitted; internal quotation marks omitted.) State v. Day, 233 Conn. 813, 821, 661 A.2d 539 (1995).
Section 961 “was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney State v. Gethers, 193 Conn. 526, 532, 480 A.2d 435 (1984) (Gethers I). Before a trial court may accept a defendant’s waiver of counsel, it must conduct an inquiry in accordance with § 961, in order to satisfy itself that the defendant’s decision to waive counsel is knowingly and intelligently made. State v. Day, supra, 233 Conn. 822. Because the § 961 inquiry simultaneously triggers the constitutional right of a defendant to represent himself and enables the waiver of the constitutional right of a defendant to counsel, the provisions of § 961 cannot be construed to require anything more than is constitutionally mandated. Id.; State v. Townsend, 211 Conn. 215, 220, 558 A.2d 669 (1989); Gethers I, supra, 534.
“[A] defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation .... Faretta v. California, [422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)]. Rather, a record that affirmatively shows
None of these authorities, however, stands for the proposition that a defendant must be specifically
Applying the appropriate constitutional standard to this record, we conclude that the defendant’s waiver of his right to counsel and assertion of his right to represent himself were valid insofar as he comprehended “the nature of the charges and proceedings” against him. Practice Book § 961 (3). The defendant knew that he was charged with two counts of assault of a peace officer, and with one count of breach of the peace. He knew in detail the facts claimed by the state to constitute his guilt of those charges, through discussions with his counsel, through statements of those facts on the record in his presence, and through the police reports that he had in his possession. Furthermore, shortly after the court accepted his waiver of counsel and his assertion of his right of self-representation, but before any further proceedings had begun, the state handed him the substitute information, the clerk read it to him, and he pleaded not guilty and elected to be tried by a jury. That information contained the essential elements of the crimes charged. Neither the defendant nor his standby counsel, however, took any action to indicate that this additional specific information created any confusion in his mind regarding the nature of the charges.
We also agree with the state that this record is sufficient to support the presumption that the defendant’s counsel, Delaney, had explained to him the nature of the offenses in sufficient detail to permit the trial court to conclude that § 961 (3) had been satisfied. Gethers I, supra, 193 Conn. 537. Contrary to the assertion of the Appellate Court that the defendant had proceeded pro se from the inception of his court appearances, the defendant was represented by Delaney from July 7, 1992, to November 18,1992, when the defendant waived his right to counsel and proceeded to trial pro se. During that time, there were at least three pretrial hearings at which Delaney appeared on behalf of the defendant. At the July 21, 1992 hearing, Delaney appeared for the defendant and requested that the case be continued so that he could confer with his client. After having had the opportunity to speak with the defendant, Delaney again appeared for the defendant on July 22. Although Delaney described himself both as the defendant’s counsel of record and as his standby counsel, Delaney argued a motion for bond reduction on his behalf. During that hearing, the assistant bail commissioner indicated that the defendant was charged with assault on a police officer. The assistant state’s attorney also stated that the defendant had been publicly screaming and swearing at police officers and had fought with them, resulting in one officer being knocked unconscious. When the court asked Delaney if he would like to speak with the defendant about those issues, Delaney responded, “I’ve already spoken to him, Your Honor. He differs from what they said. He claims they came up and said a few things, he mouthed off, he wasn’t mouthing off at them, he was talking to somebody else. He said they came over and got into his face and things started.” Thus, the record affirmatively discloses that Delaney discussed the facts of the case with the defend
C
Finally, we agree with the state that this record also discloses that the remaining requirements of § 961 were complied with.
Moreover, “the court should ascertain, through an appropriate inquiry, that the defendant possesses the intelligence and capacity to make the choice and to appreciate the consequences of his decision to represent himself. . . . Some of the factors bearing on the defendant’s capacity include age, education, mental health, prior experience with criminal trials and consul
The waiver of counsel canvass here reveals that the defendant: (1) had completed two and one-half years of college; (2) had a history of emotional problems but did not currently require treatment or medication; (3) had prior experience as a defendant in a criminal trial; (4) had consulted with counsel prior to proceeding pro se; and (5) had standby counsel available to assist him throughout the entire trial. The trial court’s inquiry pursuant to § 961 supports a conclusion that the defendant was competent to waive his right to counsel.
II
We now turn to the first of the defendant’s alternate grounds for affirmance. The defendant claims that the trial court improperly permitted him to represent himself without ordering, sua sponte, a competency examination,
We agree with the defendant that the record is adequate to review his claim and that, because “[t]he conviction of an accused person who is not legally competent . . . violates the due process of law guaranteed by the state and federal constitutions”; State v. Gonzalez, 205 Conn. 673, 686, 535 A.2d 345 (1987); his claim is of constitutional magnitude. The first two prongs of Golding are thus met. We therefore proceed to a consideration of the third prong, namely, whether the alleged constitutional violation exists that deprived the defendant of a fair trial.
The United States Supreme Court’s decision in Godinez v. Moran, 509 U.S. 389, 399-400, 113 S. Ct. 2680,
The standard we use to determine whether a defendant is competent under state law to stand trial is that set forth in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (test for competence to stand trial is “ ‘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 proceedings against him’ ”). The Dusky standard has been codified at § 54-56d (a), which provides that “[a] defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.”
A
The defendant first argues that, because the trial court was aware of his prior psychiatric history and was also aware that the crimes that he was accused of involved “irrational behavior,” the court was constitutionally obligated to order a competency examination prior to accepting his waiver of counsel. We disagree.
“[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 circumstances, into a defendant’s competency to stand trial .... When a Pate inquiry is required, a court may not
“A defendant who challenges the validity of his [waiver] for lack of an evidentiary inquiry into his competence must make a showing that . . . the court had before it specific factual allegations that, if true, would constitute substantial evidence of mental impairment. Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). 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.” (Citations omitted; internal quotation marks omitted.) State v. Watson, 198 Conn. 598, 605, 504 A.2d 497 (1986).
At the time that it accepted the defendant’s waiver of counsel, the trial court was aware that the defendant: (1) had completed two and one-half years of college; (2) had a past history of mental illness but was not currently receiving psychiatric treatment or taking medication; and (3) had been fully and adequately informed of the consequences of representing himself. Although
The defendant also argues that, even if he had been competent at the time the trial court accepted his waiver of counsel, events that occurred during the course of the trial, specifically, his (1) failure to make a motion to sever the two cases, (2) lack of understanding of the voir dire process, (3) elicitation of prejudicial material from other similar incidents,
We agree that a defendant who is competent at the commencement of a trial may later become incompetent and that, when a reasonable doubt concerning the defendant’s competency is raised, the trial court must order a competency examination. State v. DesLaurier, supra, 230 Conn. 589 n.12. Much of the defendant’s argument, however, is based on the inadequacy of his legal skills as evidenced by examples of strategic errors he made in the course of representing himself. We are not persuaded that the defendant’s incompetence to stand trial is demonstrated by his lack of legal competence to try his case skillfully.
The defendant also argues that the trial court’s decision to order a presentence psychiatric examination pursuant to § 17a-566; see footnote 12; indicates that the trial court became aware during the course of the trial that the defendant was mentally impaired and, accordingly, should have ordered a § 54-56d (d) examination.
We must presume from the fact that the trial court ordered a § 17a-566 (a) examination that it suspected
Ill
The defendant’s second alternate ground for affirming the judgment of the Appellate Court is that the trial court improperly instructed the jury regarding the element of intent necessary to find him guilty of breach of the peace. The defendant claims that the trial court’s instruction failed to include the judicial gloss that we applied, after the present case had been tried, to the same mens rea language in the disorderly conduct statute. See State v. Indrisano, 228 Conn. 795, 806-19, 640 A.2d 986 (1994). Because this claim was not preserved in the trial court, the defendant seeks to prevail under State v. Golding, supra, 213 Conn. 239-40, or, in the alternative, under the plain error doctrine. See Practice Book § 4185. We conclude that the defendant may prevail under Golding.
We agree with the defendant that the record is adequate for review and that he has raised a claim of consti
Moreover, it is clear from the record that the constitutional violation exists. The trial court’s mens rea instruction simply restated the pertinent language of § 53a-181; see footnote 3; and then referred to the generalized instruction that the court had given on intent: “It must be proved by the state beyond a reasonable doubt that the defendant intended to cause inconvenience, annoyance, or alarm in a public place by the commission of the forbidden conduct, which, in this case, is using abusive or obscene language. I remind you of what I just told you about intent. A person acts intentionally, with respect to a result, or to conduct, when his conscious objective is to cause such result, or to engage in such conduct.”
The statutory language setting forth the intent required for conviction of breach of the peace is identical to the language in General Statutes § 53a-182 (a),
We therefore proceed to consideration of whether the trial court’s failure to include the Indrisano gloss in the jury instructions was harmless. The defendant argues that the state has not satisfied its burden of demonstrating that the improper jury instruction was harmless beyond a reasonable doubt. We agree.
Miele, Buyak and Connolly all testified that the defendant had been shouting and swearing at the police officers, thus attracting the attention of passersby, and that in response to the defendant’s behavior, Miele and Buyak had approached the defendant, who hit Miele. A struggle then ensued between the defendant and the officers, during which all three fell down the stairs, resulting in injuries to the officers. The defendant, on the other hand, testified on direct examination that he had been standing outside the train station but had not been shouting at Miele and Buyak, and that the two officers had approached him and asked him if he had a problem, to which he had responded, “Yes. The Hart
Given that the testimony concerning this event is ambiguous regarding the defendant’s intent, it cannot be said beyond a reasonable doubt that the trial court’s omission of the Indrisano gloss did not contribute to the verdict. In other words, the jury, under the trial court’s instruction, could have fully credited the defendant’s testimony that his only provocative conduct was the statement “[t]he Hartford police are fucking me,” and, nevertheless, still found him guilty of breach of the peace, a result that is constitutionally infirm. The fourth prong of Golding is, therefore, satisfied and the defendant is entitled to a new trial on the breach of the peace charge.
The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to affirm the judgment of the trial court with respect to the assault of a peace officer charges, and to remand the case to the trial court for a new trial on the breach of the peace charge.
In this opinion PETERS, C. J., and CALLAHAN and PALMER, Js., concurred.
Practice Book § 961 provides: “[Right to Counsel] — Waiver
“A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
“(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
“(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
*635 “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding' of the case; and
“(4) Has been made aware of the dangers and disadvantages of self-representation.”
General Statutes § 53a-167c provides in relevant part: “Assault of a peace officer .... (a) A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer . . . .”
General Statutes § 53a-181 provides in relevant part: “Breach of the peace: Class B misdemeanor, (a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (5) in a public place, uses abusive or obscene language or makes an obscene gesture . . . .”
The specific question certified was: “In the circumstances of this case, did the Appellate Court properly conclude that the trial court did not conduct an adequate canvass before permitting the defendant to waive counsel?” State v. Wolff, 234 Conn. 901, 660 A.2d 859 (1995).
Practice Book § 4140 provides in pertinent part: “[Proceedings after Certification by Supreme Court] — Papers to be Filed by Appellant and Appellee
“(a) Upon the granting of certification, the appellee may present for review alternative grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the appellate court. . . .”
Ordinarily, the defendant would have been put to plea on the charges. For reasons that the record does not disclose, at the June 10, 1992 hearing, Judge Pellegrino entered not guilty pleas and elected a jury trial on behalf of the defendant.
At the July 22,1992 hearing, the bail commissioner appeared and summarized the defendant’s legal history and noted that, in addition to the charges in this case, the defendant also had outstanding charges in a similar, but unrelated incident that had occurred on December, 20, 1991. The bail commissioner reminded the court that, at the defendant’s arraignment, he had recommended a promise to appear, and was reinstituting that recommendation “on the assault on [a] police officer file.” The court was reluctant to release the defendant on a promise to appear and requested that Delaney, as the defendant’s attorney of record, assist the defendant in obtaining his social security disability checks in order to post bond. The defendant complained that Delaney had not contacted him as had been promised
The defendant was thereafter escorted from the courtroom when an issue of his competency arose. The defendant had complained that Delaney had not “posted bond for him.” Judge O’Keefe, finding the idea that Delaney would post bond for a client “a wild, bizarre idea,” ordered a competency examination. Delaney and the state then explained that, because Delaney had gone to the federal building to pick up the defendant’s SSI check, which the defendant intended to use to post bond, the defendant’s complaint that Delaney had not “posted bond” for him simply referred to Delaney’s trip to the federal building on the defendant’s behalf, and the court then withdrew the order for a competency examination.
The 1rial court’s canvass of the defendant consisted of the following colloquy:
*640 “The Court: All right, bring him in. All right, Mr. Wolff, Scott Brian Wolff, is that your name?
“The Defendant: Yes, ma’am.
“The Court: All right, now your case is ready for trial, one of the cases has been pending since December, 1991. And do you have a lawyer?
“The Defendant: Well, I’m pro se.
“The Court: All right, and since when have you been pro se?
“The Defendant: All along.
“The Court: And do you — you had a public defender appointed, is that correct?
“The Defendant: You might say so, yeah.
“The Court: All right, and you don’t want hi[s] assistance?
“The Defendant: That’s correct.
“The Court: All right, and why not?
“The Defendant: Because I can present the case better than he can.
“The Court: All right, let me ask you then in that regard, do you know anything about the rules of evidence?
“The Defendant: Yeah.
“The Court: You do?
“The Defendant: Yeah.
“The Court: And where did you get your training?
“The Defendant: The street.
“The Court: The street? All right.
“The Defendant: And I have a couple of years in college.
“The Court: All right, and you—
“The Defendant: If I may say something? On the case that you’re talking of, you’re — which case are you talking of?
“The Court: Well, there are two of them.
“The Defendant: Yeah.
“The Court: You have one that was December, 1991, and one which was May, 1992.
“The Defendant: That’s right. Now, the case in 1991, I was expecting to go to trial July 3 and on that case I had probably about three or four pretrials. Now on this second case I’ve had four or five pretrials. Now I hope that you are — have more information about this case than I’m hearing. I mean . . .
“The Court: I don’t have any information about this case because I am the trial judge. I’m not — I don’t get involved in pretrials, I know absolutely nothing about your case and that will remain that way because you’re going to get a jury trial.
“The Defendant: Okay, then, well, if I may enlighten you—
*641 “The Court.: Excuse me, unless you want a court trial.
“The Defendant: No, I want a jury trial. If I may enlighten you a little bit about the public defender and all of that. I asked the judge repeatedly if I could have a [promise to appear], okay, I was denied that, okay. And the court appointed Mr. Delaney here, now I have a very low bond.
“The Court: What is your bond?
“The Defendant: Two thousand, now Mr. Delaney here one day asked for a [promise to appear], I had a bond reduction and he says I’m going to go get your social security check. Now he went through the trouble of getting me the social security check and I never heard from — I got two social security checks which would pay for the bond okay. And that was months ago.
“The Court: What kind of — are you on disability of some sort? What kind of social security?
“The Defendant: No, SSI.
“The Court: SSI?
“The Defendant: Right.
“The Court: Uh hum.
“The Defendant: No it’s beyond me how I’m supposed to — how you expect me to be part of this — Mr. Delaney here when I mean he wouldn’t even post my bond.
“The Court.: Well he can’t post your bond. A lawyer cannot post bond for a client. That’s against the canons of the ethics, he can’t do that. Don’t you have any family? Anybody?
“The Defendant: Oh, family is the only one that can post bond?
“The Court: Anybody but a lawyer. He is forbidden from posting bond for a client,. That’s not his job and as I said he would be in violation of the canons of ethics.
“The Defendant: Well, he told me this, that he was going to contact a couple of bondsmen and they were going to contact me, all right.
“The Court: That’s proper.
“The Defendant: Now nothing ever happened.
“The Court: Well, are you blaming him for that?
“The Defendant: Yeah, I am.
“The Court,: Well, that’s not his job. His job is to represent you in legal matters. As I said you don’t have—
“The Defendant: That’s not a legal matter, as far as getting—
“The Court: You don’t have any family that can bring the—
“The Defendant: No I have no family.
“The Court: No friends?
“The Defendant: No.
“The Court: Nobody? Where did you live before you were arrested?
“The Defendant: I was living at South Park Inn.
“The Court: Well that issue, the bond issue?
*642 “The Defendant: Yeah?
“The Court: Is not why you’re here today.
“The Defendant: Right, okay.
“The Court: You’re here because we’re going to go to trial.
“The Defendant: Right, right, now I’m prepared to go to trial.
“The Court: All right.
“The Defendant: Now number one I’ve been pro se as I say all along on both cases. I accepted the court’s judgment in appointing this public defender here, okay? And that was no problem but I was continuously denied a promise to appear which I can find no reason why that’s denied me. My bond was . . .
“The Court: As I said that’s not — I’m not here to decide your bond.
“The Defendant: Okay.
“The Court: I am the trial judge.
“The Defendant: Yeah, yeah.
“The Court: That’s why we’re here, for the trial.
“The Defendant: Okay, now the court is expecting me to go to trial when I’ve said all along that I’m pro se and I’d like to present my case. I told the court that I’d like to go out on the street — outside okay, I’m in jail now, so I can start putting together my defense. Now, it’s beyond me how the court expects me to start my trial when I haven’t been able to prepare for it.
“The Court: Uh hum, what have you been [doing] since you’ve been sitting in jail? Have you been going to the law library to research the issues in your case?
“The Defendant: I am not — I am — I’ve already been through one trial ma’am. Okay, so I am somewhat familiar [with] what a trial consists of.
“The Court: All right. Let me, let’s get one thing straight here, you have a right to defend yourself, but the court has to determine first and put on the record that you know what you’re doing, that’s all. If you want to [go to] trial and defend yourself then that’s fine.
“The Defendant: Yeah, well if the court says that I’m incompetent, then so be it. But I mean—
“The Court: I’m not going to say that unless—
“The Defendant: Well they must’ve decided that I am competent, but they’re stonewalling me because I cannot go out and prepare my defense. I mean I can’t prepare my defense in jail.
“The Court: Why not?
"The Defendant: Because I need to subpoena people, I need to gather infor — you know talk to people about this and that. I mean that’s only fair.
“The Court: Well, unfortunately you are in custody and you have to defend yourself. If you want you have available to you a lawyer, but you don’t want the lawyer you want to do it on your own. That is your right as long as you know what you’re doing and you know the consequences of what you’re doing.
*643 “The Defendant: Well my consequences is I lose the case.
“The Court: Right, do you understand how much time you're facing in jail?
“The Defendant: He told me last, two consecutive ten year bids.
“The Court: All right and that—
“The Defendant: Is that correct?
“The Court: Well is that right? What’s assault on an officer, five?
“Mr. Delaney: C felony.
“[William Bumpus, Assistant State’s Attorney]: C, it’s ten, Your Honor.
“The Court: Ten. Ten years, you have two counts of assault on an officer, that is twenty and then you have on the other one two, two and a half years.
“The Defendant: Okay so now you’re telling me — I mean I’m aware of the consequences but I mean I see it as being highly unfair that you expect me to go to trial like that without being able to prepare my defense.
“The Court: Well, if what you’re saying is that the only way you can prepare your defense is by being out on the street that’s not correct. Many people prepare their own defenses and defend themselves when they’re in custody.
“The Defendant: Yeah, oh yeah, there’s no doubt about that, I agree with you on that, but I mean is it that too much to ask for a promise to appear?
“The Court: That’s not what you’re—
“The Defendant: You’re saying I already had a bond reduction, this and that and on my last court appearance, okay, he was ready to give me a trial then, okay. And he never, the judge never gave me my next court date, okay. I mean there’s all sorts of you know violations. Now if the only way we can get this over with is for me to start today then so be it, but I mean it’s very unprofessional, I say, it’s — you’re going to make me look very unprofessional.
“The Court: Well, that’s one of the dangers of representing yourself when you don’t know what you’re doing and you’re not a lawyer.
“The Defendant: No but you’re telling me I don’t know what, how to prepare a defense.
“The Court: No I’m not saying that, you may know, I don’t know. I haven’t seen you in the courtroom, I haven’t seen whatever it is you want to do. My purpose here is to explain to you the consequences of you representing yourself. And the consequences are these, that you’re going to be facing an experienced lawyer who knows the mies of evidence and procedure. Who knows how to question witnesses and cross-examine, who has had many years experience, legal training and you have none. Now if you want to represent yourself knowing the consequences that you’re facing twenty years in prison, if you get convicted, that’s your right. As long as we understand the consequences of your actions, that’s the only reason we’re here. You have, every citizen has a right to defend and represent themselves, and you have that right like anybody else. If what you’re trying to do is tell me that the*644 only way you can defend yourself is by getting out in the street then I told you that is not the purpose we’re here. Some judge has decided that the proper amount of the bond is what has been set. That’s that judge’s decision.
“The Defendant: Ma’am, okay, we can start the trial, but I want to say this. Having four or five pretrials on one case is too much, okay? Number one the case in 1991 was expected to — I was on the pretrial docket on three different occasions for that case. Now that’s wrong in itself, okay?
“The Court: All right, you wanted a trial sooner, is that it?
“The Defendant: Of course I wanted a trial sooner.
“The Court: All right. Then that’s fine, we’ll proceed.
“The Defendant: That didn’t happen. Now all of this and I’m not granted a promise to appear. You know what that says to me? That says that you people are being very unfair, but like I say there’s no problem with starting a trial, but—
“The Court: All right, we’ll do that, which case are we starting on then? Both together or—
“The Defendant: You don’t know which case — you see, you know that’s your decision.
“The Court: Well, that’s not my decision, that’s the state’s.
“Mr. Bumpus: Yes, Your Honor, the state would be requesting to try both matters together.
“The Court: All right, and what’s your position on that?
“The Defendant: That’s not a problem.
“The Court: You want to try both of them at the same time?
“The Defendant: We’ve already been through that, yeah. The — one of the previous judges said that having both cases would save the state money.
“The Court: All right. For the record then I want to just question you to make sure that it’s clear about the fact that you’re representing yourself. You have a public defender assigned to you, I’m going to ask Mr. Delaney to remain as standby counsel. What that means is that if you want to speak to him, if a legal issue comes up that you want to talk to him about it, then you may do so.
“The Defendant: I’d like another — someone else beside Mr. Delaney because I’ve been given false information by him, that’s why.
“The Court: Well Mr. Delaney is familiar—
“Mr. Delaney: You better put it on the record if you want to have something to do about that, you better tell the judge what false information you got.
“The Court: Mr. Delaney is the one that’s familiar with the case.
“The Defendant: Yeah?
“The Court: And so he knows what your situation is.
“The Defendant: Uh hum.
“The Court: Now you don’t want him because he gave you false information?
*645 “The Defendant: Okay, you can answer this question. How long has the state got to go to trial?
“The Court: Did you file a motion for a speedy trial?
“The Defendant: I’m talking without a motion for a speedy trial.
“The Court: Years.
“The Defendant: Years?
“The Court: Uh hum.
“The Defendant: Okay, Mr. Delaney can represent me.
“The Court: Okay, he’s — you mean to represent you or to be standby counsel?
“The Defendant: No I mean he can standby, whatever you want to call it.
“The Court: Standby counsel?
“The Defendant: Standby counsel, yeah.
“The Court: All right he will be here to assist you if you want to ask him questions.
“The Defendant: Yeah right.
“The Court: About the law or a procedure, all right?
“The Defendant: Right, yeah.
“The Court: So you understand as I said before, do you? That — well let me ask you this, you said you had two years of college?
“The Defendant: Two and a half.
“The Court: Two, where did you go to school?
“The Defendant: North Texas State University.
“The Court: And what did you study?
“The Defendant: Business.
“The Court: Business administration or what?
“The Defendant: I was majoring in marketing.
“The Court: All right, and when was that?
“The Defendant: Seventy-nine, eighty, eighty-one.
“The Court: When did you graduate from high school?
“The Defendant: Seventy-nine.
“The Court: Where?
“The Defendant: Hall High School.
“The Court: In West Hartford?
“The Defendant: Yeah.
“The Court: Excuse me?
“The Defendant: Yes.
“The Court: All right, and what did you do after high school?
“The Defendant: I went to college.
“The Court: You went to — and what did you do after college?
“The Defendant: Is this—
“Mr. Delaney: The judge needs to ask you some questions to find out if you can represent yourself. She’s trying to find out your qualifications.
*646 “The Defendant: Oh, she’s seeing whether I’m competent?
“Mr. Delaney: Not — well, whether you’re able to defend, take care of yourself.
“The Defendant: Damn, I been — nineteen ninety-one was when I was first arrested and I’ve been all along, maybe I went crazy along the way. Okay after college I decided to drop out and I got a job as an auto mechanic.
“The Court: All right, have you ever served in the military?
“The Defendant: Never.
“The Court: All right and did — you said you’re getting SSI, that’s disability, what’s that for?
“The Defendant: That’s for a previous breakdown you might want to call it, a couple of mental—
“The Court: Some kind of emotional problem?
“The Defendant: That’s right.
“The Court: All right, and do you receive — do you take any medication now?
“The Defendant: No.
“The Court: And when was — you don’t have — you’re not under treatment for that?
“The Defendant: No.
“The Court: All right and you said that before you were arrested you were living at a shelter?
“The Defendant: I was living in a transitional living facility.
“The Court: You had just gotten out of jail? Were you in jail and they put you in a facility?
“The Defendant: I was arrested in ninety-one, okay? So no I wasn’t in jail.
“The Court: Uh hum, you were at that facility as a result of that arrest?
“The Defendant: As a result — that facility is not — that’s out on the street.
“The Court: Okay, that’s what I’m trying to determine, where did you live? I don’t know where it is.
“The Defendant: Like I say, transitional living facility, South Park Inn.
“The Court: Okay, all right and so you’ve had two years of college, two and a half years of college. Do you feel qualified to represent yourself?
“The Defendant: Ma’am, I wouldn’t be standing here if I felt otherwise.
“The Court: Listen to me, you answer my questions in a respectful fashion or you’re going to be sitting in the cell in contempt. Now I’m trying to give you some leeway because you’re not a lawyer. But I’m not going to take any lip from you, do you understand that?
“The Defendant: Yes ma’am.
“The Court: Now you answer my questions in the appropriate manner. You want to represent yourself, well you’re in a court of law and you will act respectfully or we’re going to have a lot of problems. Now I have to ask you these questions for the record, you want to represent yourself,*647 that's fine but I am going to make sure that this record reflects that you know what you’re doing' and that’s the purpose for these questions. Now do you feel that you can represent yourself, yes or no?
“The Defendant: Yes.
“The Court: And you understand the consequences of your, representing yourself?
“The Defendant: Yes.
“The Court: All right, we've already been through that, the fact that you can go to jail for twenty years, correct?
“The Defendant: Yes.
“The Court: All right. All right knowing that you know the consequences, you know what you’re doing, the court is going to let you represent yourself. And I’m telling you the rules, if you’re going to represent yourself you’re going to act like, as much like a lawyer as you can. Because that’s your function here and this isn’t going to be a circus and you’re going to do things in a respectful fashion. If you need to consult with Mr. Delaney he’s here for you to do that. Now the first thing that we’re going to do is we’re going to pick the jury. Do we have a panel? We’ll take a recess then, and take a recess we’re going to call [the] panel. We’ll recess until noon, at that time the panel will be here and we'll start picking the jury. Court’s in recess.”
The state’s explanation of the two sets of charges and the defendant’s decision to try the cases together consisted of the following exchange:
“The Court: All right, well tell me what the facts are of the first case, the breach of peace?
“[William Bumpus, Assistant State’s Attorney]: The first case I will refer to the report, Your Honor. Your Honor the facts per the police report to the first case in terms of time are that on December 20, 1991, in the area of one Civic Center police officer by the name Al DeStefano was on patrol, he passed by the defendant he said hello at which time the defendant responded by saying ‘Go fuck yourself.’ The officer approached the accused who continued to swear. Officer asked the defendant to leave the Civic Center lobby because his behavior was in violation of the law. The defendant refused at which time the defendant then took a swing at the police officer, he missed and the police officer placed him under arrest.
“The Court: All right, and the second one?
“Mr. Bumpus: The facts are as follows, on May 26, 1992, near one Union Place police officer by the name of Laura Buyak was placing another individual under arrest at which time she was approached by the defendant. He was shouting obscenities stating ‘fuck you motherfucking cops, you motherfucking cops are all — .’ It continues with a string of obscenities, Your*648 Honor, at which time officer Buyak approached him, told him to calm down. The defendant continued with his obscenities, at which time he was causing a crowd to gather. He continued with more obscenities when another police officer approached him. The defendant took a swing at this police officer with his clenched fist striking the police officer in the chest and a fight between officer Buyak, officer Miele and the defendant ensued Your Honor.
“The Court: All right, to respond to what the prosecutor said, Mr. Wolff, the only reason that I bring this up is so that you know that there is this avenue for you to have one case tried at a time so that there is no prejudice in any particular case. As I said what could happen is that the jury might find that because in December, 1991, you swung at a police officer, then you must’ve done the same thing and be guilty of what happened in May. And so, but however it is your choice if you want them together we can do that.
“The Defendant I see the other way, as the police harassing me.
“The Court: Well, that’s your defense, but I’m just talking about whether—
“The Defendant: Right, so then like I say try them together. I mean if the state wants to save money you can try them together. Everything will go faster that way.
“The Court: All right, so you understand then, what the consequences could be and you’re willing to take that risk?
“The Defendant: Yes.
“The Court: Okay.”
The state subsequently withdrew the charges in the December 20, 1991 incident, and the defendant was tried solely on the charges in the May 26, 1992 incident.
The charges read by the court clerk were as follows:
“The Clerk: [I]n docket number CR92-42 42 99 to the substituted information pursuant to Practice Book §§ 618, 832 and 833, the state of Connecticut alleges that on or about May 26, 1992, approximately 5:05 p.m. at or near one Union Place in the city of Hartford, the defendant, Scott Brian Wolff, count one, caused physical injury to a peace officer, to wit officer Laura Buyak while she was acting in performance of her duties as a peace officer in violation of Connecticut General Statutes § 53a-167c, assault of a police officer. How do you plead to this charge, guilty or not guilty?
“The Defendant: Not guilty.
“The Clerk: On count two caused physical injury to a peace officer, to wit officer Steven Miele while he was acting in performance of his duties as a peace officer in violation of Connecticut General Statutes § 53a-167c, assault of a police officer. How do you plead to this charge guilty or not guilty?
“The Defendant: Not guilty.
“The Clerk: And on count three, did with intent to cause inconvenience, annoyance or alarm, he in a public place used abusive or offensive language in violation of Connecticut General Statutes § 53a-181 (a) (5), breach of [the] peace. How do you plead to this charge, guilty or not guilty?
“The Defendant: Not guilty.”
General Statutes § 17a-566 provides: “Certain convicted persons to be examined. Report and recommendation, (a) Except as provided in section 17a-574 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner [of mental health] to conduct an examination of the convicted defendant by qualified personnel of the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the [Whiting Forensic Institute] for additional examination or should be sentenced in accordance with the conviction. Such examination shall be conducted and the report made to the court not later than fifteen days after the order for the examination. Such examination may be conducted at a correctional facility if the defendant is confined or it may be conducted on an outpatient basis at the institute or other appropriate location. If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the institute for a period not to exceed sixty days, except as provided in section 17a-567 provided the hearing may be waived by the defendant. Such commitment shall not be effective until the director certifies to the court that space is available at the diagnostic unit. While confined in said diagnostic unit, the defendant shall be given a complete physical and psychiatric examination by the staff of the unit and may receive medication and treatment without his consent. The director shall have authority to procure all court records, institutional records and probation or other reports which provide information about the defendant.
“(b) The request for such examination may be made by the state’s attorney or assistant state’s attorney who prosecuted the defendant for an offense specified in this section, or by the defendant or his attorney in his behalf. If the court orders such examination, a copy of the examination order shall be served upon the defendant to be examined.
“(d) Such report shall include the following: (1) A description of the nature of the examination; (2) a diagnosis of the mental condition of the defendant; (3) an opinion as to whether the diagnosis and prognosis demonstrate clearly that the defendant is actually dangerous to himself or others and requires custody, care and treatment at the institute; and (4) a recommendation as to whether the defendant should be sentenced in accordance with the conviction, sentenced in accordance with the conviction and confined in the institute for custody, care and treatment, placed on probation by the court or placed on probation by the court with the requirement, as a condition to probation, that he receive outpatient psychiatric treatment.”
Practice Book § 4185 provides in pertinent part: “Errors Considered
“The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”
Although the Appellate Court noted that the defendant’s claim was “also reviewable” under Golding, which would have required a constitutional, rather than plain error, analysis, it also indicated that it “need not undertake a Golding analysis.” State v. Wolff, supra, 37 Conn. App. 506 n.6. We read the Appellate Court opinion, therefore, to rest, not on constitutional principles, but on a reading of § 961 (3) that may go beyond such principles.
In the context of the trial court’s acceptance of a guilty plea, we have read Practice Book § 711 (1), which dictates that the trial court determine whether the defendant understands the nature of the charge to which he is entering a plea, to require that the court inform the defendant of the essential elements of the crime charged. Oppel v. Lopes, 200 Conn. 553, 558-59, 512 A.2d 888 (1986); State v. Childree, 189 Conn. 114, 120, 454 A.2d 1274 (1983). Although in this case we are called upon to interpret language identical to that which we construed in Oppel and Childree, those cases do not control our interpretation of the phrase “nature of the charges” as used in § 961 (3). By entering a guilty plea, a defendant is waiving his right to trial by jury, his right to confront accusers, and the privilege against self-incrimination; the defendant is not, however, simultaneously asserting another constitutional right. Unlike a guilty plea, waiver of the right to counsel involves reciprocal constitutional rights; the assertion of the right to self-representation compels waiver of the right to counsel. In the context of § 961 (3), therefore, we construe the phrase “nature of the charges” to mean precisely that which is constitutionally required for the assertion of these complementary constitutional rights.
Although the Appellate Court based its decision on its conclusion that the trial court had not complied with the requirements of § 961 (3) and, therefore, did not address whether the trial court had properly concluded that the remaining requirements of § 961 had been met, because a brief examination of the waiver of counsel canvass reveals that the remaining requirements of § 961 were fulfilled, we shall, in the interest of judicial economy, reach that conclusion, rather than remanding the case to the Appellate Court for such a determination.
As we noted in part I C of this opinion, the court’s inquiry pursuant to § 961 addressed the issue of competence. The defendant argues, however, that under the circumstances of this case, the trial court’s determination of his competence pursuant to its inquiry was not sufficient, and that an independent competency examination was required.
General Statutes § 54-56d provides in relevant part: “Competency to stand trial, (a) Competency required. Definition. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
“(b) Presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing 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) Request for examination. 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.
“(e) Hearing. The court shall hold a hearing as to the competency of the defendant no later than ten days after it 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. If the written report is introduced, at least one of the examiners must be present to testify as to the determinations in the report, unless his 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 his counsel may waive the court hearing only if the examiners, in the written report, determine without qualification that the defendant is competent. ...”
“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions 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 in original.) State v. Golding, supra, 213 Conn. 239-40.
State v. Watson, supra, 198 Conn. 598, involved a challenge to the validity of a guilty plea on the ground that the trial court had failed to inquire adequately into the defendant’s competence at the time the plea was entered. Because the standard used to determine competency to stand trial is the same as that used to determine competency to plead guilty or to waive the right to counsel; State v. Day, supra, 233 Conn. 823; the principles articulated in Watson apply with equal force in the present case.
The defendant’s theory of defense was that there was a police conspiracy against him and that Miele and Buyak had, as a form of harassment, initiated the confrontation in this case. In support of his theory that there was a police conspiracy, the defendant introduced evidence of other confrontations between himself and the police. Although the defendant’s acknowledgment of previous confrontations with the police may, in fact, have been prejudicial to his case, the defendant’s claim of a police conspiracy is not, in and of itself, sufficient to require a competency examination where, as in this case, the trial court was aware prior to the presentation of evidence that this was his theory of defense and had warned him of the possible prejudicial effect of revealing that he had been involved in previous altercations with the police, and where the rest of the record supports a finding of the defendant’s competency.
The defendant does not claim that the content of the § 17a-566 examination demonstrates that the trial court should have ordered a competency examination. He argues only that the fact that the trial court ordered a § 17a-566 examination indicates that it should have ordered a competency examination.
General Statutes § 53a-182 provides: “Disorderly conduct: Class C misdemeanor. (a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise; or (4) without lawful authority, disturbs any lawful assembly or meeting of persons; or (5) obstructs vehicular or pedestrian traffic; or (6) congregates with other persons in a public place and refuses to comply with a reasonable official request or order to disperse.
“(b) Disorderly conduct is a class C misdemeanor.”