DocketNumber： SC 17422; SC 17423
Judges： Dranginis, Norcott, Sullivan
Filed Date： 5/9/2005
Status： Precedential
Modified Date： 11/3/2024
Opinion
This appeal
The record reveals the following procedural history. More than twenty years ago, the defendant “was charged in three cases with eight counts of capital felony in violation of General Statutes § 53a-54b. The trial court dismissed two counts for lack of territorial jurisdiction and, after a jury trial, the defendant was convicted of four counts of capital felony in violation of
“Thereafter, on September 21, 2004, T. R. Paulding, Jr., an attorney, entered appearances in the three criminal cases against the defendant. His appearances were in lieu of the appearances by attorneys employed by
The trial court held a hearing at which it canvassed the defendant about his decision to waive further challenges to the death sentences. The court indicated that it saw no evidence that the defendant was not competent and set January 26, 2005, as the execution date. Id., 581.
Despite the fact that Paulding had appeared for the defendant in lieu of the public defenders, “[o]n December 1, 2004, the [public defender’s office] filed amotion to proceed in forma pauperis and a petition for writ of certiorari in the United States Supreme Court. The [public defender’s office] represented in the filings that the defendant had refused to sign an affidavit of indigence in support of the motion because he was incompetent. The United States Supreme Court denied the motion on January 10, 2005. [See Ross v. Connecticut, 543 U.S. 1046, 125 S. Ct. 943, 160 L. Ed. 2d 766 (2005).]
“Also on December 1, 2004, the [public defender’s office] filed in the Superior Court a motion for permission to appear as (1) next friend of [the defendant]; and (2) as a party in interest or as an intervener or as amicus curiae. The [public defender’s office] alleged in its motion that it had standing to appear as the defendant’s next friend because the defendant was incompetent when he terminated the [public defenders’] representation of him; because [the defendant] is presently incompetent; and because the [public defender’s office] has had a significant relationship with [the defendant] for some seventeen years .... In addition to the motion for permission to appear, the [public defender’s office] lodged with the court clerk a motion for
“Thereafter, the state filed a motion seeking a determination as to whether the defendant was competent to waive his rights to seek postconviction relief and whether his waiver was knowingly and voluntarily made. The court held a competency hearing on December 9, 2004. Because the trial court had not yet ruled on the [public defenders’] motion to appear, the [public defender’s office] attended the hearing only as an observer.” (Internal quotation marks omitted.) State v. Ross, supra, 272 Conn. 581-83.
At the December 9, 2004 hearing, the court heard testimony from Paulding and the defendant. At the conclusion of the hearing, the court stated that, “although it would appear to a layperson that the defendant was competent under any standard that would apply, the court required additional information as to whether the defendant had any mental disorder, disease or defect that might affect his decision. Accordingly, the court ordered that the defendant undergo a competency examination by Michael Norko, a psychiatrist, and scheduled a competency hearing for December 28,2004. The court also scheduled a hearing on the [public defenders’] motion to appear on behalf of the defendant for December 15,2004.” (Internal quotation marks omitted.) Id., 587. After hearing arguments by the parties and the public defender’s office at the December 15, 2004 hearing, the court denied the motion to appear. Id., 588.
At the December 28, 2004 competency hearing, the trial court heard testimony from Norko and the defendant and found that the defendant was competent under the standard set forth in Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966) (defendant is competent to waive farther challenges to death sentence when “he has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation”). See State v. Ross, supra, 272 Conn. 591.
“Thereafter, at oral argument before this court on [its] writ of error, the [public defender’s office] represented that it had evidence of the defendant’s incompetence that had never been presented to any court. In light of this representation, and despite the . . . failure [of the public defender’s office] to make an offer of proof to the trial court, this court issued an order authorizing the [public defender’s office] to file with this court a written offer of proof detailing the evidence that it would present at a competency hearing. The [public defender’s office] filed an offer of proof,
Upon review of the evidence presented at the December 28, 2004 hearing and the offer of proof filed by the public defender’s office, this court concluded that the public defender’s office had failed to present “meaningful evidence” that the defendant was incompetent and, therefore, under the rule set forth in Demosthenes v. Baal, 495 U.S. 731, 736, 110 S. Ct. 2223, 109 L. Ed. 2d 762 (1990), the public defender’s office was not entitled to participate in an evidentiary hearing at which it could attempt to establish the defendant’s incompetence and its standing to appear as the defendant’s next friend.
After our ruling, the public defender’s office filed a petition for a writ of habeas corpus on behalf of the defendant in the United States District Court for the District of Connecticut, again arguing that the defendant was incompetent and that it should therefore be allowed to appear as his next friend. See Ross v. Lantz, United States District Court, Docket No. 3:05CV00116 (D. Conn. January 24, 2005). The District Court, Chatigny, J., held a hearing on the petition and concluded that the public defender’s office had satisfied the requirements for next friend standing. Id. Accordingly, the court ordered that an evidentiary competency hearing be held and stayed the execution of the death sentences pending resolution of the matter. The commissioner of correction appealed from the decision to the United States Court of Appeals for the Second Circuit and filed a motion to vacate the stay in that court. See Ross v. Lantz, United States Court of Appeals, Docket No. 05-8900 (2d Cir. January 25, 2005). The Court of Appeals concluded that the District Court should not have granted next friend status to the public defender’s office without first holding a competency hearing. Id. Accordingly, the Court of Appeals ordered the District Court to conduct the hearing “as expeditiously as is reasonably practicable,” dismissed the appeal, and denied the motion to vacate the stay. Id.
The commissioner of correction then filed an application to vacate the stay of execution with the United
On January 28, 2005, at 3 p.m., the District Court, Chatigny, J., convened a telephone conference call among Paulding; counsel for Dan Ross,
After the telephone conference ended, Paulding requested that the execution be stayed temporarily so that he could investigate whether, in light of the District Court’s action, he had a conflict of interest that would impinge on his ability to represent the defendant. The state, which had indicated repeatedly throughout the proceedings that any request for a stay made by the defendant would be honored, agreed, and the commissioner of correction stayed the execution until January 31, 2005, at 9 p.m. On January 31, 2005, as the death warrant issued by the trial court was about to expire,
The state then filed a motion in the trial court seeking a determination as to whether the District Court’s action had created a conflict of interest for Paulding. The court held a hearing on the motion on February 3 and February 10, 2005. The state stated at the hearing that the conflict that required resolution was between Paul-ding’s obligation to advocate vigorously for the defendant’s claim that he was competent to waive further
The trial court held a competency hearing on April 7, 8, 11, 12, 13 and 14, 2005. Dan Ross, the defendant, Norko, Grassian, Goldsmith, Suzanne Gentile, who is a psychiatrist retained by Paulding on behalf of the defendant, Holdridge and John F. Tokarz, a former employee of the department of correction, testified at the hearing. The depositions of Martha Elliot, a journalist and friend, and Susan P., the defendant’s girlfriend, were read into the record. In its memorandum of decision, the trial court noted that Dan Ross, Elliot and Susan P. all claimed that the defendant’s stated motivations for waiving further legal proceedings were false. The court also noted that these witnesses were “opposed to the death penalty in general, are close friends or family of [the defendant], and do not personally support his decision to die” and, therefore, were not “unbiased witnesses . . . .” With respect to the psychiatric testimony, the court concluded that all four
Special counsel claims on appeal that the trial court improperly determined that the state had satisfied its burden of proving that the defendant’s waiver of his right to seek postconviction relief was voluntary. The state counters that: (1) this court lacks subject matter jurisdiction over the appeal because special counsel is
I
Before addressing the merits of special counsel’s claims on appeal, we must address the state’s claim that this court lacked subject matter jurisdiction to hear the appeal. See Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). “A determination regarding . . . subject matter jurisdiction is a question of law . . . .” (Internal quotation marks omitted.) Sweeney v. Sweeney, 271 Conn. 193, 207, 856 A.2d 997 (2004).
“[T]he right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.” (Internal quotation marks omitted.) Hartford
The state claims that special counsel does not meet either the test for establishing that he is a party or the test for establishing that he is aggrieved. In support
We emphasize that our conclusion that special counsel had standing to advocate the position that the defendant was incompetent to the trial court and to bring this appeal is limited to the specific circumstances of this case. This case is sui generis and was precipitated by Judge Chatigny’s action. We do not intend to suggest that counsel representing a defendant who desires to waive further proceedings in a capital case has an inherent conflict of interest requiring the appointment of separate counsel to advocate for incompetence. As long as counsel is qualified and competent and, in the exercise of his or her independent professional judgment, believes that his or her client meets the legal standard for competence, no conflict arises.
II
We next address the substance of special counsel’s claims on appeal. At the outset, we set forth the appropriate standard of review. Special counsel argues that a determination as to the voluntariness of a waiver of constitutional rights is subject to de novo review. See
It is well established that a waiver of constitutional rights must be voluntary. See State v. Whitaker, 215 Conn. 739, 753, 578 A.2d 1031 (1990). In making that determination, courts look to the totality of circumstances. Id., 753-54. “Those potential circumstances include . . . the crucial element of police coercion . . . the defendant’s maturity . . . education . . . physical condition . . . and mental health . . . .”
Some waivers require a determination that the defendant was competent, however, in addition to a determination that the waiver was voluntary. It is undisputed in the present case, for example, that a defendant who is shown to be incompetent cannot validly waive post-conviction challenges to a death sentence. In Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966), the United States Supreme Court held that the standard for competency in this context is whether the defendant “has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” At least one court has suggested that the Rees competency standard may have a volitional component as well as cognitive component so that a defendant who is capable of rationally understanding and evaluating his options may, nevertheless, be incompetent if he has a mental condition that substantially affects his ability to make or follow through on a rational decision. See Rumbaugh v. Procunier, supra, 753 F.2d 399.
Thus, although a voluntariness determination has a mental state component involving the defendant’s susceptibility to government coercion, and although some courts have suggested that a competence determination has a volitional component, it is clear that voluntariness and volitional capacity are entirely separate legal concepts and are subject to entirely different inquiries. Whether a waiver was voluntary is determined on the
There is no claim of governmental coercion in this case.
“A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 728-29. The general rule is that a finder of fact “is free either to accept or reject, in whole or in part, the evidence presented by the .... witnesses .... [T]he credibility of the . . . expert and lay witnesses, and the weight to be given to their testimony ... is a matter committed to the sound judgment and common sense of the trier of fact.” (Internal quotation marks omitted.) State v. Ross, supra, 269 Conn. 319.
With respect to the burden of proof, the trial court relied on a number of federal courts that have held that, in determining whether a defendant is competent to waive further legal proceedings in a capital case, “ [initially sufficient evidence must be presented to cause the court to conduct an inquiry. After that point, it . . . is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition. ... [A] presumption of competency does not apply .... Instead, the question is whether, giving full and fair consideration to all of the
We now turn to a review of the trial court’s analysis of the evidence. The trial court found that all four testifying psychiatrists agreed that the defendant suffered from sexual sadism, depression or mood disorder, personality disorder with narcissistic, borderline and antisocial traits and anxiety disorder. Although the experts disagreed about the precise degree of the severity of the defendant’s narcissistic disorder, their disagreement on that issue was not substantial. The experts also agreed that the defendant’s cognitive ability was not impaired.
Norko, who has been involved in this case since 1995; see State v. Ross, supra, 272 Conn. 588-90 (discussing Norko’s prior involvement in this case); and Gentile also testified that the defendant’s narcissism impairs his ability to empathize and that he is concerned about how he is perceived by others. They did not believe, however, that his narcissism rendered him incapable of empathy or of making a moral decision based on genuine spiritual and religious beliefs. Both Norko and Gentile identified several reasons given by the defendant for wanting to waive further legal proceedings, including his desire to do the morally right thing, to spare further pain to the families of the victims, to avoid another public airing of the horrific details of the crimes, to avoid growing old in prison, and to accept
The trial court also took note of the voluminous writings by the defendant that were placed into evidence. At certain times during his incarceration, the defendant wrote monthly letters, entitled “Walking with Michael,” in which he reported developments in this case and in his life, expressed his feelings about his situation and set forth religious thoughts and quotes. The defendant would send the letters to a friend who would then distribute them to up to 150 friends and supporters. In his writings, the defendant consistently expressed his desire to spare the families of his victims the pain of another penalty hearing. Grassian and Goldsmith saw these writings as evidence of the defendant’s inability to empathize, while Norko and Gentile saw them as evidence of the defendant’s genuine feelings.
Finally, the trial court noted that Dan Ross, Elliot and Susan P. all believed that the defendant’s stated motivations for ending legal proceedings were false. Because these witnesses were opposed to the death penalty and were friends or family of the defendant, the trial court concluded that “[t]hey do not present as unbiased witnesses to this court.”
Upon careful review of the transcripts and exhibits, we conclude that the trial court reasonably could have determined that the testimony of Grassian and Goldsmith that the defendant had absolutely no ability to empathize with the families of the victims and that his stated moral and religious beliefs were entirely fraudulent was not as persuasive as the testimony of Norko and Gentile that the defendant’s moral and religious sensibilities have developed over time and, although his ability to empathize is limited, it is not entirely lacking. The defendant personally testified before the trial court, which had the opportunity to gauge his appearance, demeanor, emotional affect and vocal inflections and to determine whether they were consistent with the conclusions drawn by Norko and Gentile.
The judgment is affirmed.
In this opinion VERTEFEUILLE, ZARELLA, LAVERY and FLYNN, Js., concurred.
Because special counsel was uncertain whether his status as appointed special counsel would allow him to bring this appeal, he filed a writ of error raising identical issues at the same time that he filed this appeal. See General Statutes § 52-263 (party aggrieved by decision of Superior Court may appeal); see also State v. Salmon, 250 Conn. 147, 167, 735 A.2d 333 (1999) (nonparty has no right to appeal pursuant to § 52-263). As is more fully discussed later in this opinion, we conclude that, under the unique circumstances of this case, special counsel has standing to appeal. Accordingly, we dismiss the writ of error as moot.
In addition to the writ of error and appeal, special counsel filed a motion to be appointed special counsel for the purpose of prosecuting the appeal. We conclude that the motion is moot because the trial court’s appointment of Thomas J. Groark, Jr., as special counsel continued through to this appeal. Cf. Bunkley v. Commissioner of Correction, 222 Conn. 444, 459, 610 A.2d 598 (1992) (trial and ensuing appeal are not separate and distinct proceeding but part of continuum of process of adjudication).
General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following ... (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety; (6) murder committed in the course of the commission of sexual assault in the first degree . . . .”
The criminal conduct in this case occurred in 1983 and 1984. Section 53a-54b has been amended several times since 1984 for purposes not relevant here. For convenience, we cite the current version of the statute although we take note of the fact that prior to the enactment of No. 01-151, § 3, of the 2001 Public Acts, the provision of the statute concerning murder committed in the course of the commission of sexual assault in the first degree had been designated subdivision (7) rather than subdivision (6).
The record in the present appeal reveals that the public defender’s office had information pertaining to the effect of the defendant’s mental disorders and the conditions of confinement on death row on his ability to make decisions about legal proceedings at least as early as 2000. The public defender’s office did not make any claim that the defendant was incompetent to waive further legal proceedings, however, until it filed the petition for certiorari in the United States Supreme Court in December, 2004, and, despite the trial court’s instructions that it should provide any evidence of the defendant’s incompetence to counsel for the defendant; see State v. Ross, supra, 272 Conn. 588; did not produce any such evidence in any forum (with the minor exception of certain personal observations by various public defenders) until ordered by this court to do so.
We note that at the same time that the public defender’s office was seeking to be appointed as the defendant’s next friend in this court, Dan Ross was seeking to be appointed as his next friend in the United States District Court for the District of Connecticut. See Ross v. Roll, United States District Court, Docket No. 3:04CV2186 (D. Conn. January 10, 2005). The District Court, Droney, J., concluded that the defendant had “amply demon-
Dan Ross had filed a petition for a writ of habeas corpus in the United States District Court for the District of Connecticut in which he claimed that he had independent standing as the defendant's father to seek relief in the courts under 42 U.S.C. § 1983. Dan Ross requested that the court enter a temporary restraining order prohibiting the defendant’s execution until his competency and the constitutionality of this state’s death penalty scheme were determined. On January 26,2005, the District Court, Chatigny, J., held a hearing on the petition by telephone and granted the request for a temporary restraining order. See Ross v. Rell, United States District Court, Docket No. 03:05CV00130 (D. Conn. January 26, 2003). The commissioner of correction filed an application to vacate the temporary restraining order with the United States Court, of Appeals for the Second Circuit. The Court of Appeals granted the application, but stayed its order until January 30, 2005, at 12:01 a.m. See Ross v. Lantz, United States Court of Appeals, Docket No. 05-8901 (2d Cir. January 28, 2005). Dan Ross then filed an application to stay the execution and for a temporary restraining order in the United States Supreme Court. On January 28, 2005, the Supreme Court denied the application and vacated the temporary stay entered by the Court of Appeals. See Ross v. Rell, 543 U.S. 1134, 125 S. Ct. 1117, 160 L. Ed. 2d 1092 (2005).
The offer of proof submitted by the public defender’s office to the District Court contained a summary of proposed testimony by Grassian that prisoners confined to death row often develop severe mental disturbances that can affect their ability to make voluntary decisions. Norko testified at the
General Statutes § 54-99 provides in relevant part: “All executions of the death penalty shall take place according to the provisions of this section and section 54-100 on the day, or within five days after the day, designated by the judge passing sentence.” As we have indicated, the trial court had designated January 26, 2005, as the date of execution.
Attached to the motion was an affidavit by Norko dated January 30, 2005, in which he stated that “[i]n the last two days, I have reviewed documentation that was not provided to me prior to rendering [his opinion at the December 28, 2004 competency hearing]. In particular, I have reviewed a letter, dated June, 2003 and authored by [the defendant], as well as a letter from [the defendant], dated [May 24,1998]. These documents were submitted to the Connecticut Supreme Court, pursuant to its request, as part of a larger [o]ffer of [p]roof from the Chief Public Defender’s office. . . . Had
Also attached to the motion were an affidavit by Martha Elliot, a journalist and a friend of the defendant’s, indicating that the defendant had told her that he believed that he suffered from “ ‘[d]eath [r]ow [s]yndrome’ a letter from the defendant to Elliot dated May 24,1998, in which he indicated that, in waiving further legal proceedings, he “was driven more by a desire to end [his] own pain than out of any noble cause”; and an affidavit by John F. Tokarz, a former employee with the department of correction, indicating that he was familiar with death row and the defendant, that the conditions on death row were harsh and that, in his opinion, the harsh conditions “played a substantial role in [the defendant’s] decision to waive his legal remedies . . . .”
Paulding has represented on several occasions that he filed the motion to stay the execution and to reopen the competency hearing because he had assured the trial court repeatedly, with the defendant’s knowledge and consent, that if evidence of the defendant’s incompetence came to his attention, he would provide it to the trial court. He believed that Norko’s statement that it was “possible” that his opinion that the defendant was competent might have been different if he had had the opportunity to question the defendant about certain materials in the offer of proof submitted by the public defender’s office came within that promise to the trial court. See footnote 8 of this opinion. It is clear, however, that Paulding never wavered in his professional opinion that the defendant was competent, even after learning of Norko’s statement.
The state also claims that the trial court was bound by our determination in State v. Ross, supra, 272 Conn. 611, that there was no meaningful evidence that the defendant was incompetent to justify a full evidentiary hearing. As we have indicated, however, the state agreed that, under the unique circumstances of this case, the trial court should hold such a hearing. Accordingly, we conclude that it waived any objection to the hearing. To the extent that the state claims that our decision in State v. Ross, supra, 611, required the trial court to hold special counsel to a heightened standard, we conclude for reasons set forth later in this opinion that we need not decide whether the trial court applied the proper standard of review.
General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”
“Historically, amicus curiae was defined as one who interposes in a judicial proceeding to assist the court by giving information, or otherwise, or who conduces] an investigation or other proceeding on request or appointment therefor by the court. ... Its purpose was to provide impartial information on matters of law about which there was doubt, especially in matters of public interest. . . . The orthodox view of amicus curiae was, and is, that of an impartial friend of the court—not an adversary party in interest in the litigation. . . . The position of classical amicus in litigation was not to provide a highly partisan account of the facts, but rather to aid the court in resolving doubtful issues of law. . . . Amicus . . . has never been recognized, elevated to, or accorded the full litigating status of a named party or a real party in interest. . . and amicus has been consistently precluded from initiating legal proceedings, filing pleadings, or otherwise participating and assuming control of the controversy in a totally adversarial fashion. . . . Historically, an amicus could not join issues not joined by the parties in interest . . . .” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Ross, supra, 272 Conn. 612.
See footnote 10 of this opinion.
We emphasize that special counsel has conceded that he has no special relationship with the defendant and is not acting as his next friend.
See also Stano v. Dugger, 921 F.2d 1125, 1144-45 (11th Cir. 1991) (en banc) (in determining whether waiver of counsel is knowing, intelligent and voluntary, court considers: “[1] the background, experience and conduct of the defendant including his age, educational background, and his physical and mental health; [2] the extent to which the defendant had contact with lawyers prior to the trial; [3] the defendant’s knowledge of the nature of the charges, the possible defenses, and the possible penalty; [4] the defendant’s understanding of the rules of procedure, evidence and courtroom decorum;
But see Wilkins v. Bowersox, 145 F.3d 1006 (8th Cir. 1998), cert. denied, 525 U.S. 1094, 119 S. Ct. 852, 142 L. Ed. 2d 705 (1999). In Wilkins, the court concluded that the court’s decision in Colorado v. Connelly, supra, 479 U.S. 164, that a defendant’s mental condition is not relevant to a determination of voluntariness unless there is proof that the defendant was subjected to coercive pressures by the state, was limited to claims involving allegedly involuntary confessions. Wilkins v. Bowersox, supra, 1012. The court relied on expert testimony that the defendant was driven by an internal coercion in support of its conclusion that the District Court properly had found that the defendant’s waiver of counsel was not voluntary or intelligent. Id., 1014. For the reasons set forth more fully in the body of this opinion, we conclude that the court in Wilkins improperly conflated the issue of voluntariness, as that concept typically is understood in the context of waiver of constitutional rights, with the issue of whether the defendant was capable not only of reaching a rational decision, but also of exercising his volition in accordance with his decision, which is a question of competence.
In Rumbaugh, the court stated that the Rees test “requires the answer to three questions:
“(1) Is the person suffering from a mental disease or defect?
“(2) If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him?
“(3) If the person is suffering from a mental disease or defect which does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from
As the state points out, the court in Rumbaugh modified the Rees standard by stating that a defendant is not incompetent unless his mental disorder prevents him from understanding his legal options and making a rational choice. Cf. Rees v. Peyton, supra, 384 U.S. 314 (defendant is incompetent if mental disorder substantially affects ability to understand options and make decision). As the state also points out, the trial court in the present case applied the three prong Rumbaugh standard, but modified it to conform to Rees.
In her concurring opinion, Judge Dranginis argues that we need not decide this question in the present case. She would conclude, however, that a defendant’s volitional capacity can be a dispositive factor in determining whether a waiver of constitutional rights was voluntary. Thus, she would conclude that state coercion is not an essential factual predicate to a finding of involuntariness. In other words, she decides the question.
Judge Dranginis also argues that our decision is flawed because there is no volitional component to the competency requirement for waiving certain rights. She suggests, for example, that, under our decision, “[u]nless the state has taken affirmative action to force the defendant’s hand in waiving his right to counsel, it is of no significance that the defendant is incapable of exercising free will.” We agree that the defendant’s volitional incapacity would have no effect on a finding of voluntariness under that scenario. In our view, however, our decision leaves open the question of whether in another case a defendant would be able to “assist in his own defense”; see General Statutes § 54-56d (a); see also State v. Ross, supra, 269 Conn. 271 (§ 54-56d [a] mirrors competency standard set forth in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 [1960] [per curiam]); and, therefore, leaves open the question of whether his waiver of right to counsel would be valid.
Finally, Judge Dranginis states that we have concluded that the defendant’s waiver was voluntary. We have not concluded that the waiver was voluntary, however, that involuntariness is not an issue in this case.
The only colorable claim of governmental coercion was the suggestion in earlier proceedings that the defendant might suffer from “death row syndrome.” As we have indicated, special counsel concedes that the defendant does not suffer from death row syndrome, if such a syndrome exists, and the special counsel’s psychiatric experts made no such claim.
The courts in Comer and Mason stated that neither party had the burden of proof in a hearing to determine the competency of a defendant to waive postconviction legal proceedings in a capital case. Mason v. Vasquez, supra, 5 F.3d 1225; Comer v. Stewart, supra, 230 F. Sup. 1038. The courts also stated, however, that they were required to determine by a preponderance of the evidence that the defendant was competent. As the trial court in the present case recognized, that standard effectively places the burden of proof on the party or parties claiming competence.
Grassian testified that he interviewed the defendant, talked with Dan Ross by telephone, toured death row, reviewed Norko’s earlier psychiatric reports and his videotaped interviews with the defendant, reviewed reports prepared by other psychiatrists who have been involved in the case and reviewed the defendant’s writings and correspondence with various people in preparation for his testimony.
Grassian’s report stated that, since the defendant had moved to Osborn correctional institution in 2003, “[h]e is the only prisoner on his tier; thus he is not subject to the verbal abuse and taunts which oppressed him at Northern [correctional institution]. Moreover, he has a [corrections [ojfficer sitting right outside his cell [twenty-four] hours a day seven days a week.
. . . [T]he [officers who have this assignment were specially picked, with special attention to their ability to relate well to [the defendant].
“Moreover, one of three mental health clinicians . . . spends about one hour each day, seven days a week, with [the defendant] . . . .” Goldsmith testified that the defendant’s “narcissistic needs [were] met in so many ways when he [moved] to Osborn. There’s lots of activity around him. He has selected correction officers who deal with him. He has lots of visits, standard visits, lots of legal visits. People come back into his life. There’s lots of activity . . . outside the prison, all about him.”
In addition, Susan P., the defendant’s girlfriend, testified that she had resumed her relationship with the defendant in January, 2005, after breaking it off in 2002. The defendant wrote a letter dated March 7, 2005, to Susan P., in which he stated: “I want so badly to stay here with you. ... I want to see if you will stick around this time. But I cannot have what I want, unless I hurt someone else.”
Grassian testified that his belief that the defendant was incapable of empathy was based on the facts that the defendant was a serial rapist and murderer, that he had never admitted that he committed a crime or “come to grips” with his own failings, and that he had continued to publish articles and grant television interviews despite the fact that he had been told that he was hurting both the families of the victims and his own family. Grassian further testified that he believed that the defendant’s desire to avoid another death penalty hearing was not, as he professed, driven by concern for the families but was driven by his desire to avoid being publicly humiliated and vilified again.
The Diagnostic and Statistical Manual of Mental Disorders (4th Ed. 1994) § 301.81, p. 659, published by the American Psychiatric Association, provides: “Vulnerability in self-esteem makes individuals with Narcissistic Personality Disorder very sensitive to ‘injury’ from criticism or defeat. Although they may not show it outwardly, criticism may haunt these individuals and may leave them feeling humiliated, degraded, hollow, and empty. They may react with disdain, rage, or defiant counterattack.” This portion of the manual was read into the record during Gentile’s testimony.
Special counsel claims that the trial court’s refusal to accord any weight to the testimony of these witnesses was not based on any findings of demeanor, hesitation in answers or other in-court conduct and that this court may, therefore, make its own determination as to the weight to give