State v. J.M.F.

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STATE OF CONNECTICUT v. J.M.F.*
(AC 37200)
Lavine, Mullins and Harper, Js.
Argued September 20, 2016—officially released January 10, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Comerford, J.)
Moira L. Buckley, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo,
Jr., state’s attorney, and David I. Cohen, former state’s
attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, J.M.F., appeals from the
judgment of conviction of attempt to commit murder
in violation of General Statutes §§ 53a-49 (a) (2) and
53a-54a (a), assault in the first degree in violation of
General Statutes § 53a-59 (a) (1), and risk of injury to
a child in violation of General Statutes § 53-21 (a) (1).
On appeal, the defendant raises the following seven
claims: (1) the trial court abused its discretion by impos-
ing a sanction against him that precluded him from
raising an affirmative defense of mental disease or
defect, ultimately violating his constitutional rights to
present a defense and to due process of law; (2) the
trial court erroneously concluded that he unequivocally
invoked his right to self-representation and that he
knowingly, intelligently, and voluntary waived his right
to counsel; (3) the trial court deprived him of his right
to due process of law by failing to order, sua sponte,
that he undergo a competency evaluation; (4) the state
unconstitutionally interfered with his right to counsel;
(5) the trial court improperly continued to trial despite
the existence of an appellate stay, which rendered the
results of the trial void ab initio; (6) the trial court
abused its discretion by not appointing a special public
defender, ultimately violating his constitutional rights
to counsel and to due process of law; and (7) the trial
court violated his rights to due process of law and to
present a defense when it refused his request to instruct
the jury on renunciation and diminished capacity. We
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. After thirteen years of marriage, on January 4,
2010, the defendant’s wife served him with divorce
papers.
On January 6, 2010, two days after having received
the divorce papers, the defendant asked his wife to
withdraw the dissolution action; she refused to do so,
but she did agree that she would file a motion for recon-
ciliation if the defendant would agree to go to counsel-
ing. After putting the children to bed for the evening,
the defendant and his wife retired to their bedroom.
In the bedroom, they began to discuss the ensuing
divorce. As they did so, the defendant became enraged.
He tackled his wife, knocking her to the floor, and he
put his hands around her neck while slamming her head
into the floor. The defendant told her: ‘‘I’m killing you.’’
He repeatedly hit her in the face and body with his fists,
pulled out her hair and put his hands around her neck.
At one point, he threw her to the other side of the
bedroom, where she landed in front of the fireplace.
She ‘‘felt like [she] was dying [and] . . . was in incredi-
ble pain.’’ The defendant then knelt on top of her and
repeatedly hit her in the face and head with a metal
flashlight. She lost consciousness approximately three
times during the attack.
After this attack, the defendant retreated to the mas-
ter bathroom where he called to his wife, telling her
that he was going to kill himself and that he needed
her assistance to do so. She did not go into the bath-
room, but, instead, believing she was dying and wanting
to save her children, she accessed the security alarm
in the bedroom. The defendant again became enraged
and tackled her. He then told her that he was going to
the kitchen to get a knife to cut his jugular vein. When
the defendant went downstairs, she gathered up the
children and drove them to the home of a neighbor.
The neighbor called the police.
When the police arrived at the defendant’s home, the
defendant surrendered peacefully. The police located
a belt, attached to a pole in the closet, which the defen-
dant said he used to try to hang himself. The defendant
was charged with and convicted of attempt to commit
murder, assault in the first degree, and risk of injury
to a child. He received a total effective sentence of
fifteen years imprisonment, followed by five years of
special parole, and the court imposed a full criminal
restraining order. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
On appeal, the defendant first claims the trial court
abused its discretion by imposing a sanction against
him for his refusal to sign the authorization forms that
were required by the state’s expert before the expert
would conduct a psychiatric examination of the defen-
dant. In particular, the defendant argues that the sanc-
tion improperly precluded him from raising a mental
disease or defect affirmative defense,1 ultimately vio-
lating his constitutional rights to present a defense and
to due process of law.
Specifically, the defendant argues: ‘‘Assuming,
arguendo, that [he] violated the court’s . . . order, the
trial abused its discretion by precluding him from
asserting the mental disease or defect defense. The
court’s extreme remedy was unnecessary to protect
the state from prejudice. The court failed to weigh the
rationale for exclusion against the defendant’s right to
present a defense. Considering the factors articulated
in [State v. Tutson, 278 Conn. 715, 899 A.2d 598 (2006),
the defendant’s] alleged violation was not substantive,
but ‘technical.’ ’’ The defendant further argues: ‘‘In cir-
cumstances such as this, preclusion of a defense should
not be the court’s knee jerk reaction where other less
prejudicial remedies are available.’’
In response, the state argues that the trial court prop-
erly granted the state’s motion to preclude defense
‘‘[a]fter concluding that the defendant had continually
engaged in dilatory tactics with the intent of ambushing
the state with regard to his defense of not guilty by
reason of mental disease or defect . . . . In light of
his failure to comply with Practice Book § 40-19,2 pre-
clusion was not abuse of discretion.’’ (Citations omitted;
footnote added.) We conclude that the court did not
abuse its discretion.
To provide the proper context for the trial court’s
ruling and ensure a full understanding of the procedural
history of this case, we set forth the following detailed
facts, which inform our review of the defendant’s claim.
The defendant was arrested in relation to this case
in January, 2010. Shortly thereafter, beginning in early
2010, he retained Attorneys Eugene J. Riccio and Timo-
thy J. Moynahan to represent him. In September, 2010,
the defendant requested a continuance to further con-
sider the psychiatric aspects of his case, which the court
granted. In April, 2011, the case was placed on the
jury list.
On August 20, 2012, the court inquired as to whether
the defendant intended to assert a defense of mental
disease or defect. The defendant responded that he did
not have the funds to be evaluated for such a defense
at that time.3 Thereafter, on September 5, 2012, the
defendant filed a notice of defense of extreme emo-
tional disturbance. On November 13, 2012, the state
represented that the attorneys in the civil assault action;
see footnote 3 of this opinion; had agreed to release
$25,000 from the prejudgment remedy attachment. The
court continued the matter.
On January 25, 2013, the defendant filed an amended
notice of his defense to include the defense of mental
disease or defect. On February 1, 2013, the defendant
asked for another continuance to work on his affirma-
tive defense, which the court granted.
On March 22, 2013, the defendant informed the court
that he was now working with Howard V. Zonana, a
psychiatrist, on his affirmative defense, but that he
needed more time. He requested a continuance to April
4, 2013, ‘‘to complete that work,’’ which the court
granted. The court explained, however, that it had set
the matter down for trial to begin in the middle of April.
On April 4, 2013, the defendant informed the court
that he now intended to represent himself during his
criminal trial. The trial court informed the defendant
that it did not want the trial in this matter to suffer any
further delays, and it ordered the matter continued for
a Faretta hearing. See Faretta v. California, 422 U.S.
806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (requiring
inquiry by court when defendant seeks to waive counsel
and represent himself).
On April 10, and April 12, 2013, the court conducted
a Faretta hearing. On the first day of this hearing, April
10, 2013, the defendant stated that he ‘‘would welcome
the assistance of a public defender.’’ In response, the
court inquired as to whether the defendant had applied
for those services, and the defendant said he had not
applied. The court then requested the presence of a
representative from the public defender’s office to
determine whether the defendant qualified for services
from that office. During this hearing, the defendant also
confirmed that he was pursuing a defense of mental
disease or defect. He also informed the court that he
had been under psychiatric care for forty months, that
he had engaged the services of a psychiatrist who was
trained in the area of his defense and who was in the
process of performing an examination of him. He fur-
ther informed the court that he had engaged the services
of a neuropsychiatrist, who also was doing neurological
testing on him.
On the second day of the Faretta hearing, April 12,
2013, before proceeding with the hearing, the court
heard from Attorney Barry Butler from the public
defender’s office. Butler informed the court that his
office had concluded that the defendant was not indi-
gent and, therefore, did not qualify for its services. The
court then considered the defendant’s request to repre-
sent himself, and ultimately granted his request. The
court nonetheless appointed the defendant’s previous
counsel, Riccio and Moynahan, as standby counsel for
the defendant.
At this point in time, the defendant informed the
court that he now had sufficient funds for his experts.
He also stated that he had an appointment scheduled
with Leslie Lothstein, a forensic psychologist, who was
an expected witness and was someone whom the defen-
dant had been seeing for forty months. He also told the
court he had an appointment with Godfrey Pearlson,
a psychiatrist, at the Olin Neuropsychiatry Research
Center for a functional magnetic resonance imaging
(FMRI) examination. The defendant also explained that
he still had been seeing Zonana. The court scheduled
a status conference for April 23, 2013. The court told
the defendant that it expected him to inform the court
at that status conference whether his experts would be
issuing reports.
At the April 23, 2013 status conference, however,
the defendant informed the court that Pearlson had
performed the FMRI, but that a report would not be
available that week.4 He also explained that Zonana and
Lothstein would not be able to issue their reports until
after they had reviewed Pearlson’s report. The court
gave the defendant thirty days to produce the written
reports, so that the state would have time to take appro-
priate action after receipt thereof, and it scheduled
another status conference for May 21, 2013.
At the May 21, 2013 status conference, the defendant
stated that Zonana had received ‘‘something’’ from
Pearlson, but that he, the defendant, was ‘‘reluctant to
get any information’’ from his experts. The defendant
explained that this was because the prosecutors had
indicated that they felt that ‘‘there [was] nothing that
could constitute . . . attorney work product’’ in the
defendant’s case even though he was a self-represented
party and a member of the Connecticut bar. The defen-
dant requested a continuance of approximately two and
one-half weeks.
The court cautioned the defendant that ‘‘this is not
a chess game,’’ and that it did not want to see a situation
where the defendant was attempting to put forth a
defense of mental disease or defect without any expert
reports. The court also clearly informed the defendant
that the state needed this information to prepare for
trial. The court then continued the matter to June 11,
2013, stating that it expected that the state would have
the reports by that time and would know what it wanted
to do in response thereto.
On June 11, 2013, the defendant informed the court
that the FMRI had been conducted on April 16, 2013,
that Pearlson and Zonana had been reviewing the
results, but had not yet issued a report to the defendant.
He further explained that Zonana could not issue such
a report until the defendant had a CAT scan, which
was scheduled for June 13, 2013. The court gave the
defendant more time. The court, however, specifically
informed the defendant that his experts needed to have
their reports ready by July 2, 2013, or the court would
consider precluding the expert testimony.
At the hearing on July 2, 2013, the defendant informed
the court that his experts wanted him to see Ruben
Gur, a neuropsychiatrist, who was in the process of
consulting with Pearlson. The defendant also told the
court that he had given Zonana the freedom to withdraw
from the case, and that Zonana had decided to with-
draw. The court explained that it had given the defen-
dant considerable leeway to contact and secure experts
in this case, but, that, with the withdrawal of Zonana,
it appeared that the situation would be ‘‘unending.’’ The
court also told the defendant that it would not delay
his trial much further, and that it would not allow an
expert to testify unless the state knew what the expert
would opine. The court then continued the matter to
August 15, 2013, and it clearly told the defendant that
this was ‘‘the end time frame for Zonana, Pearlson or
Gur to issue a necessary report or indicate to [the court]
that no report will be forthcoming . . . . These doc-
tors better have their reports in so that [the prosecutors]
can be fairly apprised of their position on it. If they
don’t have it in, I will take the appropriate action that
is necessary, but you are forewarned that I am not going
to delay this any further because I can see this coming
from left field that we are going to be talking about this
at Christmas time—not going to happen.’’
At the August 15, 2013 hearing, the defendant argued
a motion for protective order before the court, claiming
that he was entitled to the court’s ‘‘protection of all
matters, material, and work product associated or
related to the defendant’s role and responsibilities as
a self-represented party, including medical examination
and communications with experts, arising from the
defendant’s role as a self-represented party.’’ After
expressing deep concern regarding the delays in the
defendant’s case while the defendant dealt with his
experts, the court opined that the defendant’s motion
was disingenuous and that the defendant was ‘‘playing
games with the system.’’ The court then stated that it
was not going to tell the defendant what he could or
could not do with his experts in this case, and that
Practice Book § 40-31 identified what information was
subject to disclosure. The court denied his motion con-
cluding that it lacked merit.
The defendant then informed the court that he had
informed his experts that, because he had an appeal
pending related to the denial of his application for a
public defender, ‘‘it was inopportune for [him] to con-
tinue communications with them until a decision was
made on the public defender, or until a decision was
made on the protective order.’’ The court told the defen-
dant that it saw no reason why the defendant would
need a public defender in order to be interviewed, and
it concluded that the defendant was employing delay
tactics: ‘‘I find that you have acted in a pattern . . . .
And I’m going to give you one month. [If] you don’t
have those professional reports in here one month from
today’s date, completed, with copies to the state of
Connecticut so that the state’s attorney can do what
analysis they deem appropriate . . . then I will enter-
tain the appropriate motion by the state. . . . So you
[have] one month to get them in. If you don’t get them
in, then I will take the appropriate action. . . . I cannot
allow this to go on any longer. There’s a clear pattern
here. Your intent is to be dilatory and delay everything.
Your intent is to interfere with the normal flow of court
business and the trial schedule of the court. Your
actions are indicative of same. And you’re doing so
under the guise of protecting your constitutional rights.
I just don’t agree with you. I see what you’re doing.’’
On August 26, 2013, the defendant filed an interlocutory
appeal challenging the court’s denial of his motion for
a protective order.5
On September 3, 2013, the court inquired about the
defendant’s communications with his experts. At this
point, the defendant refused to give the court any infor-
mation regarding his experts, stating that the informa-
tion was confidential. On September 12, 2013, the
defendant again refused to give the court information
about his experts and cited the appellate stay that he
claimed resulted from his interlocutory appeal of the
court’s order denying his protective order as a reason to
not move ahead in his criminal case. The state thereafter
filed a motion to terminate stay pursuant to Practice
Book § 61-13 (d), which the trial court granted on Octo-
ber 23, 2013.6
On January 21 and 29, 2014, the trial court heard the
defendant’s appeal from the decision of the office of
the public defender. See footnote 4 of this opinion. The
court upheld the decision of the office of the public
defender, concluding that the defendant was not
indigent.7
On March 12, 2014, the court informed the defendant
that he had thirty days to produce any expert reports
related to his proposed affirmative defense of mental
disease or defect, and it, again, expressed its displea-
sure with the defendant’s delay tactics. The court stated:
‘‘Over the last year and a half, this has been said over
and over again, and, to this day, neither the state nor
the court has seen anything from the defendant with
regard to mental status in this case, even though, clearly,
he has been obligated to do so.’’ The court continued
the matter for one month, to April 11, 2014, and
announced that a trial date would be set at that time.
On April 11, 2014, the defendant gave the state a
report from Lothstein, and indicated that the report was
based on Lothstein’s examination of the defendant in
2010 and on the FMRI from April, 2013. The court then
told the parties that jury selection would commence
on June 17, 2014.
Meanwhile, on April 28, 2014, the state filed a motion
for psychiatric examination in accordance with Practice
Book § 40-19; see footnote 2 of this opinion; which the
court heard on April 29, 2014. The state explained that
it had received the defendant’s report from Lothstein
on April 11, 2014, and it reviewed it over the following
week and retained its own expert, Justin Schechter, a
forensic psychiatrist. The state informed the court that
after Schechter had reviewed Lothstein’s report,
Schechter expressed a desire to examine the defendant
before rendering his own opinion on the defendant’s
defense of mental disease or defect. The state further
explained that before it had filed its formal motion for
psychiatric examination, it had met with the defendant
and attempted to schedule an appointment with the
defendant and Schechter, but the defendant objected
to an examination, prompting the state to file its for-
mal motion.
The defendant argued that he wanted time to consider
and respond to the state’s motion. He also argued that
he was ‘‘not refusing the examination . . . [but] was
asking the court to be engaged because [he] view[ed]
the court . . . as having the responsibility to protect
[his] rights as an individual . . . particularly as a self-
represented individual.’’ The defendant then com-
plained that the state had approximately four years to
examine him but that it had not attempted to do so
during that time, and he stated that he did not under-
stand the significance of conducting an examination
now, in light of the fact that he had been undergoing
therapy for approximately fifty-two months.
The court granted the state’s motion for a psychiatric
examination, stating: ‘‘You will provide the state’s
expert with any authorizations that are necessary to
complete the work up by the state’s expert in this mat-
ter. You can make it known to him if you have problems
with the scheduling of the examination. He can weigh
that for what he deems appropriate. You can, at time
of trial, file . . . whatever in limine motion you deem
appropriate.’’ (Emphasis added.) The court also ordered
the defendant to appear at Schechter’s office at 5 p.m.
that evening.
On April 30, 2014, the state filed a motion to preclude
the defendant from asserting a defense of mental dis-
ease or defect and to hold him in contempt, to which
he objected. At a May 1, 2014 hearing on this motion,
the state informed the court that the defendant had
appeared at Schechter’s office as ordered, but that he
refused to read, have read to him, or sign Schechter’s
standard consent form. The state argued that the defen-
dant refused to cooperate with Schechter as the court
had ordered, that this was nothing more than a delay
tactic, and that the court should grant its motion to
preclude, as well as find the defendant in contempt.
The defendant contended that he fully had complied
with the court’s order by showing up at Schechter’s
office. He argued that he had not consented to the
examination, and, therefore, was not required to sign
a consent form, and that he was at Schechter’s office
because the court had ordered him to be there. He also
argued that it was Schechter, not he, who refused to
continue with the examination without the form. The
defendant asked that the examination be rescheduled
and conducted in accordance with the court’s order,
and that the court review Schechter’s consent form
before requiring him to sign it.
The court stated that it specifically had ordered the
defendant to provide the necessary authorization to
Schechter, and that the defendant’s actions were a viola-
tion of the court’s order. The court also stated: ‘‘The
defendant’s action in this case speaks far louder than
words. The court has been more than patient . . . in
allowing, time after time, a delay of this case at his
request for various reasons. The court [previously] set
a date for the commencement of selection of a jury in
this case, and it’s clear to me that the actions of the
defendant are intended to continue and delay any prog-
ress in this matter. Notwithstanding his words, his
actions speak very clearly here. I don’t intend to allow
anybody to make a joke out of our system. And, while
I intend to protect the rights of the defendant, I think
the record is replete that I have done so in this particu-
lar case.
‘‘I also have an obligation [to] the people to get the
matter resolved. And I’ve made my position quite clear.
I’m not going to let anybody manipulate or play games
with the system. It’s as simple as that. And that’s exactly
what’s being done here.
‘‘The defendant’s objection, therefore, is denied. And
the court finds that he has failed to comply with a court
order here. I made myself perfectly clear the other day.
I not only said that he would report for an examination
by Dr. Schechter, but I made it clear that he would
sign any authorization that would be provided by Dr.
Schechter. . . .
‘‘The defendant in this case continues as a self-repre-
sented party to assert certain privileges that he has
asserted for years by way of argument, motions, and,
in this particular case, clearly, I think that assertion
was meant to delay all along. He knew what he was
doing. He knows what he’s doing. He’s making a record
here, and I think he’s just thwarting the process.
‘‘I think his actions are quite clear. So, his objection
is overruled or denied, if you will. We’re done playing
games with the system. The motion that was filed by
the state for a finding of contempt and for a preclusion
of the defense will be denied in part and granted in
part. That is to say, the motion for contempt is denied
. . . [but] the state’s motion to preclude a defense
based upon the defendant’s mental status is granted in
this case.’’8 The court then told the parties to be pre-
pared for jury selection on May 27, 2014, as previously
ordered, and that the start of evidence was scheduled
to begin on June 17, 2014.9
On appeal, the defendant claims that the court abused
its discretion by precluding him, because of a mere
‘‘technical’’ violation of the court’s order, from raising
a defense of mental disease or defect, ultimately vio-
lating his constitutional rights to present a defense and
to due process of law. In support of his claim, he relies
in relevant part on State v. Tutson, supra, 278 Conn.
740. Both parties have asked and agreed that we should
employ an abuse of discretion standard of review. We
conclude that the court did not abuse its discretion in
precluding the defendant’s defense as a sanction for
his failure to comply with the court’s order.
We initially set forth the legal principles governing
our resolution of this claim, as well as our standard of
review. ‘‘Practice Book §§ 757 through 761 [now §§ 40-
17 through 40-19], inclusive, relate to defenses based
on the defendant’s mental state. If the defendant intends
to rely on such defense or if he intends to introduce
expert testimony relating to a mental disease or defect
or to any other condition bearing upon the issue
whether he had the requisite mental state for the offense
charged, he is required to notify the prosecuting author-
ity in writing of such intention and to furnish him with
copies of pertinent medical reports. The prosecutor
may then move to have the defendant examined by a
psychiatrist of the state’s choice and in an appropriate
case the court may order that the defendant be so exam-
ined. In the event of a failure of the defendant to give
the required notice, furnish appropriate reports, or sub-
mit to the ordered examination, the court may exclude
the testimony of any expert witness offered by the
defendant on the issue of his mental state.’’ State v.
Lovelace, 191 Conn. 545, 549, 469 A.2d 391 (1983) (hold-
ing court did not abuse its discretion in excluding testi-
mony on issue of defendant’s mental state when
defendant failed to comply with rules of practice), cert.
denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d
142 (1984).
‘‘Although we recognize that the right of a defendant
to present a defense is subject to appropriate supervi-
sion by the trial court in accordance with established
rules of procedure and evidence . . . we are also mind-
ful that the fair opportunity to establish a defense is a
fundamental element of due process of law . . . and
that our rules should not be applied mechanistically
so as to restrict unreasonably that important right.’’
(Citations omitted; internal quotation marks omitted.)
State v. Carter, 228 Conn. 412, 426–27, 636 A.2d 821(1994).
‘‘The sixth amendment does not confer the right to
present testimony free from the legitimate demands of
the adversary system. . . . The adversary system of
trial is hardly an end in itself; it is not yet a poker
game in which players enjoy an absolute right always
to conceal their cards until played. . . .
‘‘We recognize, however, as have most courts
addressing the issue, that exclusion of [evidence sup-
porting a defense, such as the testimony of an alibi
witness,] may not be justified in all cases where the
defendant has failed to comply with the discovery rules.
The trial court must weigh the need for exclusion
against the defendant’s right to present a defense. . . .
The decision is within the sound discretion of the trial
court and will turn on the facts of the particular case.
Factors which the trial court must consider include:
whether the disclosure violation was technical or sub-
stantial, the timing of the ultimate disclosure, the rea-
son, if any, for the violation, the degree of prejudice
to the parties respectively offering and opposing the
evidence, whether any resulting prejudice might be
cured by a postponement and, if so, the overall desirabil-
ity of a continuance.’’ (Internal quotation marks omit-
ted.) State v. Tutson, supra, 278 Conn. 740.
Here, the defendant focuses primarily on the pur-
ported reasonableness of his refusal to sign Schechter’s
consent form and the alleged lack of prejudice that
refusal caused to the state because the defendant stated
at the May 1, 2014 hearing that he now would sign the
form if the court ordered him to do so and submit to
the examination. The state contends that it was not an
abuse of discretion for the court to preclude the defense
of mental disease or defect after looking at the repeated
delays caused by the defendant related to his defense
and then to consider whether the defendant’s refusal
to sign the consent form was just another delay in a
long line of delay tactics. We agree with the state.
Pursuant to Practice Book §§ 40-17 and 40-18, the
defendant was required to provide written notice of his
intent to assert a defense of mental disease or defect
and to provide the names of his experts. The defendant
also was required to provide the state, within five days
of receipt, copies of the reports prepared by any experts
whom the defendant would call as witnesses. The state
then had five days to file a motion to have the defendant
examined by the state’s expert. See Practice Book
§ 40-19.
In April, 2010, Lothstein examined the defendant. In
April, 2013, three years after the defendant was exam-
ined by Lothstein, the defendant underwent an FMRI
with Pearlson. At an April 23, 2013 status conference,
the court asked the defendant if his experts would be
issuing reports. The defendant informed the court that
Pearlson had performed an FMRI, but that a report
would not be available that week. He also stated that
Zonana and Lothstein would not be able to issue their
reports until after they had reviewed Pearlson’s report.
The court gave the defendant thirty days to produce
the written reports, so that the state would have time
to take appropriate action after receipt thereof.
When those thirty days elapsed, rather than provide
the court with any reports, the defendant claimed that
he did not want to divulge any information from his
experts because he was concerned about ‘‘attorney
work product,’’ since he was now self-represented and
also an attorney. At this point, the court warned the
defendant that this was not ‘‘a chess game,’’ and it
cautioned him that it was concerned about his delay
tactics and the state’s need for this information in order
to prepare for trial.
In June, 2013, after yet another continuance, the court
told the defendant that if the reports of his experts
were not ready by July 2, 2013, the court would consider
precluding the testimony of his experts. On July 2, 2013,
with no reports forthcoming, the court continued the
matter to August 15, 2013, but clearly told the defendant
that this was ‘‘the end time frame’’ for his experts to
have their reports ready so that the state could prepare
for trial. The court cautioned the defendant that it would
not delay this matter any further, and that it did not
want this matter continuing through the end of the year.
Yet, still, additional delays followed. Those delays
included, but were not limited to, the defendant’s volun-
tary discharge of Zonana, his filing of an interlocutory
appeal regarding his motion for a protective order, his
appeal from the decision of the office of the public
defender finding that he was not indigent, his repeated
assertions to the court that communications with his
experts were confidential attorney work product
because he was an attorney and was acting as his own
attorney in this case, and his citing of an appellate stay
as a reason not to give the court any information on
his experts or to proceed with his criminal case. In
fact, the defendant did not produce Lothstein’s written
report until April, 2014. Indeed, it is quite clear from
this detailed history that the court had been asking for
the defendant to produce the reports of his experts and
that it granted continuance after continuance to allow
him time to produce those reports from April, 2013,
until April, 2014, despite its repeated and pointed warn-
ings that it did not want further delays and that the
state needed these reports to prepare properly for trial.
Once the defendant finally produced an expert report,
and the state sought to have the defendant examined
by Schechter, the defendant then sought time to file a
written objection to the state’s requested evaluation,
and he argued that there would be no worth to a new
evaluation at this late date, more than four years after
the crimes. Thereafter, despite the court’s order to pro-
vide Schechter with all necessary authorizations, the
defendant refused to read, to have read to him, or to
sign Schechter’s consent form. Thus, the court’s express
finding that the defendant sought to continue and delay
this matter by employing dilatory tactics that both
delayed the proceedings and thwarted the judicial pro-
cess certainly was not a ‘‘knee jerk reaction’’ as the
defendant argues on appeal; it is supported by the exten-
sive record in this case. Furthermore, the court repeat-
edly warned the defendant that his tactics could result
in the preclusion of his defense.
Thus, on the facts of this case, we conclude that the
defendant’s refusal to read, have read to him, or to sign
Schechter’s consent form so that an evaluation could
be performed was not a mere ‘‘technical’’ violation of
the court’s order, but, rather, it was part of the defen-
dant’s campaign to manipulate the system and delay
the trial in this matter. Accordingly, the court did not
abuse its discretion in precluding the defendant from
asserting a defense of mental disease or defect.
II
The defendant next claims that the court erroneously
concluded that he unequivocally invoked his right to
self-representation during certain stages of the pretrial
proceedings and that he knowingly, intelligently, and
voluntarily waived his right to counsel in violation of
the fifth, sixth and fourteen amendments to the United
States constitution, and in violation of article first, § 8,
of the Connecticut constitution.10 The state responds:
‘‘[T]he fact that the defendant sought self-representa-
tion as an alternative to continued representation by
Attorneys Riccio and Moynahan did not preclude the
trial court from finding that he had made a clear and
unequivocal request for self-representation. Addition-
ally, the trial court’s canvass fully complied with what
is constitutionally required, and the court did not abuse
its discretion in concluding that the defendant’s waiver
of his right to counsel was knowing, intelligent and
voluntary.’’ We agree with the state.
The following additional facts inform our review. Ric-
cio and Moynahan represented the defendant beginning
in early 2010. On April 4, 2013, the defendant filed a
pro se appearance in lieu of counsel, and the court
proceeded, on April 10, and April 12, 2013, to conduct
a Faretta hearing. See Faretta v. California, supra, 422
U.S. 806. The defendant explained to the court that he
wanted to represent himself because both attorneys
previously had sought to withdraw, and that, in retro-
spect, he thought the court was wrong in not letting
them withdraw.11 He stated that a hostile relationship
had developed between them. The defendant then told
the court that he would like the assistance of a public
defender, although he had not applied for such
assistance.
On the first day of the hearing, April 10, 2013, the
court explored the defendant’s education and work
experience, and it ascertained that the defendant under-
stood the disadvantages and dangers of self-representa-
tion. The court further explored the defendant’s mental
state and the fact that the defendant intended to con-
tinue his pursuit of a defense of mental disease or
defect. The court inquired as to whether the defendant
understood his burden of proof on such a defense and
the consequences of the jury accepting that defense.
When asked by the court if he believed he could
properly represent himself, the defendant answered
that he really did not feel suited to it and that he would
not hire himself. The court found that the defendant’s
request was ‘‘artfully’’ equivocal. The court told the
defendant that he would give him time to apply for the
services of a public defender, and that, if the defendant
did not qualify for such services, the court would con-
tinue the Faretta inquiry; it also warned the defendant
that if he wanted to represent himself, he must be
unequivocal, without any hedging. The court then
recessed to permit the defendant to talk with a pub-
lic defender.
On April 12, 2013, the public defender informed the
court that the defendant did not qualify financially for
the services of the office of the public defender. The
court then inquired whether the defendant still wanted
to represent himself and whether he had anything else
to say. The defendant stated: ‘‘You asked a number of
questions, and I responded forthrightly to them. I still
feel the need to request the court to allow me to exercise
my constitutional right to be a self-represented party
in this case.’’ (Emphasis added.) The court thanked
the defendant for his ‘‘clarity,’’ and it opined that the
defendant’s request to represent himself now had
become ‘‘pretty unequivocal.’’ The court also told the
defendant that it would entertain a request for the addi-
tion of private counsel if the defendant indicated a
desire for such at a later date.
The court then set forth the following: ‘‘I think you’ve
expressed yourself very clearly here today, and you
have been clearly advised of your right to appointed
counsel. We have explored that option as best we could
under the circumstances. Certainly, I find that you pos-
sess the intelligence and capacity to appreciate the con-
sequences of self-representation. You understand the
nature and complexity of the proceedings and charges
and the permissible punishments that would apply to
a case such as this.
‘‘And, we have gone through the disadvantages and
danger of self-representation. You’ve expressed your-
self rather well in that regard. . . . I’m well aware that
you have had a rather stellar legal career . . . . I am
convinced at this point in time [however] that it would
be in your best interest to have standby counsel in this
matter . . . . And at this point in time, I’m going to
appoint Mr. Riccio and Mr. Moynahan as your standby
counsel in this matter. That’s not to say we can’t make
a change in that if you make a request at a later date
based upon your efforts to get other counsel involved
in the case.
‘‘If your financial circumstances change, and you
wish further review in terms of an indigency petition,
I would never preclude you from exploring that as well.
I want you to be represented appropriately. I think
you’re a bright, intelligent man who can do a decent
job on your own behalf. On the other hand, there’s
nothing like having guys who really know how the pro-
cedure works like those two men standing right next
to you right now . . . . ’’ The defendant objected to
the appointment of Riccio and Moynahan as standby
counsel, but the court overruled that objection.
On appeal, the defendant now claims that his invoca-
tion of his right to self-representation was equivocal and
that he did not knowingly, intelligently, and voluntarily
waive his right to counsel. We are not persuaded.
‘‘It is well established that [t]he right to counsel and
the right to self-representation present mutually exclu-
sive alternatives. A criminal defendant has a constitu-
tionally 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. . . .
‘‘The inquiry mandated by Practice Book § 44-312 is
designed to ensure the knowing and intelligent waiver
of counsel that constitutionally is required. . . . We
ordinarily review for abuse of discretion a trial court’s
determination, made after a canvass pursuant to . . .
§ 44-3, that a defendant has knowingly and voluntarily
waived his right to counsel. . . .
‘‘The threshold requirement that the defendant
clearly and unequivocally invoke his right to proceed
pro se is one of many safeguards of the fundamental
right to counsel. . . . Accordingly, [t]he constitutional
right of self-representation depends . . . upon its invo-
cation by the defendant in a clear and unequivocal man-
ner. . . . In the absence of a clear and unequivocal
assertion of the right to self-representation, a trial court
has no independent obligation to inquire into the defen-
dant’s interest in representing himself. . . . [Instead]
recognition of the right becomes a matter entrusted to
the exercise of discretion by the trial court. . . . Con-
versely, once there has been an unequivocal request for
self-representation, a court must undertake an inquiry
[pursuant to Practice Book § 44-3], on the record, to
inform the defendant of the risks of self-representation
and to permit him to make a knowing and intelligent
waiver of his right to counsel. . . .
‘‘Although a clear and unequivocal request is
required, there is no standard form it must take. [A]
defendant does not need to recite some talismanic for-
mula hoping to open the eyes and ears of the court to
[that] request. Insofar as the desire to proceed pro se
is concerned, [a defendant] must do no more than state
his request, either orally or in writing, unambiguously
to the court so that no reasonable person can say that
the request was not made. . . . Moreover, it is gener-
ally incumbent upon the courts to elicit that elevated
degree of clarity through a detailed inquiry. That is, the
triggering statement in a defendant’s attempt to waive
his right to counsel need not be punctilious; rather, the
dialogue between the court and the defendant must
result in a clear and unequivocal statement. . . .
‘‘Finally, in conducting our review, we are cognizant
that the context of [a] reference to self-representation
is important in determining whether the reference itself
was a clear invocation of the right to self-representa-
tion. . . . The inquiry is fact intensive and should be
based on the totality of the circumstances surrounding
the request . . . which may include, inter alia, whether
the request was for hybrid representation . . . or
merely for the appointment of standby or advisory coun-
sel . . . the trial court’s response to a request . . .
whether a defendant has consistently vacillated in his
request . . . and whether a request is the result of an
emotional outburst . . . .’’ (Emphasis omitted; foot-
note added; internal quotation marks omitted.) State v.
Pires, 310 Conn. 222, 230–32, 77 A.3d 87 (2013).
In this case, a thorough review of the hearing con-
ducted April 10 and April 12, 2013, reveals that the
court properly found that the defendant expressed an
unequivocal invocation of his right to self-representa-
tion, and, further, that the defendant knowingly, intelli-
gently, and voluntarily waived his right to
representation by counsel. At the hearing, after the
court determined that the defendant did not qualify
for the services of the public defender, the court then
pointedly asked the defendant if he wanted to represent
himself. The defendant explicitly told the court: ‘‘I still
feel the need to request the court to allow me to exercise
my constitutional right to be a self-represented party
in this case.’’ (Emphasis added.) The trial court found
that this request was clear, and it actually thanked the
defendant for such ‘‘clarity.’’ We conclude that the
defendant’s invocation of his right of self-representation
was clear and unequivocal.
Additionally, in accordance with Practice Book § 44-
3, the court conducted an inquiry and found that the
defendant was aware of his right to counsel, that he
had the intelligence and the capacity to appreciate the
consequences of his invocation of his right of self-repre-
sentation, that he understood the nature of the proceed-
ings and the charges against him, and that he was aware
of the dangers and disadvantages of self-representation.
The court discussed the defendant’s education and
work experience, noting that the defendant had a juris
doctorate degree and that he had ‘‘a vast amount of
experience in the business and political world.’’
The court also explored the defendant’s mental state
and the fact that he intended to continue his pursuit of
a defense of mental disease or defect. The court ensured
that the defendant understood his burden of proof on
such a defense and the consequences of the jury
accepting that defense. The court appointed the defen-
dant’s former attorneys as standby counsel, and it also
told the defendant that it would entertain a request for
the addition of private counsel if the defendant wanted
private counsel at a later date. The court further
informed that defendant that it would not preclude him
from further exploring the appointment of a public
defender.
Thus, after reviewing the transcript of the court’s
Faretta inquiry, we conclude that the court properly
found that the defendant clearly and unequivocally
invoked his right to self-representation and that he
made a knowing, intelligent, and voluntary waiver of
his right to counsel.
III
The defendant next claims that the court deprived
him of his right to due process of law by failing to order,
sua sponte, that he undergo a competency evaluation.
He argues: ‘‘On June 12 and 18, [2014]13 the court was
confronted with substantial evidence that [the defen-
dant’s] competence to stand trial required scrutiny by
a mental health professional. The court abused its dis-
cretion by failing to order a competency evaluation or
hearing.’’ (Footnote added.) The defendant also cites a
hearing that occurred on July 2, 2014, as further proof
that the court should have ordered a competency evalu-
ation. The following additional facts inform our review.
After learning at the June 12, 2014 status conference
that his appellate petitions had been dismissed, all stays
had been lifted, and the court was ready to proceed
with jury selection on June 18, 2014, the defendant
stated: ‘‘Your Honor, I have a number of issues I’d like
to raise. First of all, I believe I am, at this point, not
competent to serve as my own attorney in this matter
. . . and I would like to seek to withdraw as a self-
represented party.
‘‘Since the appointment in April of 2013, I’ve gone
through a number of mental and psychiatric issues
including nearly three weeks of involuntary commit-
ment at the Institute of Living. And, I think, at this point,
I just don’t have the psychiatric or mental capability of
serving as a self-represented party at this time. . . . I
believe . . . that I’m in an extraordinary circumstance,
and I need the assistance of counsel—of appointed
counsel. . . .
‘‘And I just don’t think I’m, at this stage, in a position
to . . . psychologically, I can’t address any of the evi-
dence in the case without having severe anxiety and
mental issues associated with it. So preparation has
really become an impossible task for me with respect
to . . . trial.
‘‘When I met with Dr. Schechter on April 29 at 5 p.m.,
in fact, in a brief conversation I had with him, he raised
the question of whether I was even competent to stand
trial after my discussion—brief discussion with him.
That question was never further addressed by him
because he refused to do the formal . . . examination.
. . . And I think the issue is still an outstanding one.
‘‘I have not been examined by a psychiatrist. I have
a very extensive report by Dr. Lothstein who’s one of
the leading forensic psychologists in the world that’s
been submitted to the state’s attorney. . . . I think that
would significantly enlighten the court as to some of
the mental and neurological issues that I’m confronting.
And I would welcome the court’s looking into it.’’
The court asked the defendant for some clarification:
‘‘When you say your competence to stand trial, that’s
your ability to understand the nature of the charges
and the proceedings pending against you and assist in
your defense, if you will. . . .
‘‘Obviously, that is exactly why the court all the way
back to April of 2013 retained as standby counsel, two
exceptionally competent criminal lawyers in this case,
either or both of whom have been in attendance
throughout all of the various proceedings to date at my
order simply because I wanted them to stay abreast of
what we were doing with the anticipation that this might
be a possibility and they would have to come back in
and act as your counsel in this case.
‘‘If that’s what you’re asking me to do, I don’t think
that would provide any difficulty. We would certainly
have Mr. Riccio and Mr. Moynahan come back into the
case as counsel in full, and they would assist you in jury
selection and assist you in presentation of the case.’’
The defendant then asked the court if it would con-
sider the appointment of a different attorney. The court
declined and explained to the defendant that Riccio
and Moynahan were excellent criminal attorneys with
‘‘exemplary resumes.’’ The court also stated: ‘‘[S]o, your
request that they be replaced, if that’s what’s being
made on the record here today, is not going to happen.
That request would be denied. You can have either or
both men come in and assist you in the case in jury
selection and/or trial. . . .
‘‘Attorney Riccio has been privy to all of the proceed-
ings as we’ve moved along here. Certainly, if you are
asking that—that you not act as your own counsel any
further and [that] Attorney Riccio [or] Moynahan or
both step in as your counsel in the matter, that could
be handled in one of two ways by the court . . . .’’
The defendant then stated that he ‘‘just wanted to
make sure [that he would] be represented by counsel’’
and that he wanted to proceed by judicial pretrial with
competent legal representation. (Emphasis added.)
Shortly thereafter, the court asked Riccio to stand near
the defendant and to step back into the case as the
defendant’s attorney.
On June 18, 2014, as the court was about the start
jury selection, the court stated that it had a motion by
the defendant to reconsider its appointment of counsel.
The defendant told the court that he would like a special
public defender appointed pursuant to Practice Book
§ 44-4. He explained that, although he has ‘‘a cordial
relationship’’ with current counsel, he was not commu-
nicating with them and wanted a different attorney. The
defendant again stated that in his brief encounter with
Schechter, Schechter ‘‘raised the question of whether
or not [the defendant] was competent to stand trial,’’
although he acknowledged that Schechter did not con-
duct an examination of him. The defendant asked the
court to read Lothstein’s report to get an understanding
of the ‘‘psychological issues’’ being faced by the defen-
dant; the defendant also stated that he would like to
be excused from jury selection because ‘‘it would be
extremely psychologically taxing on [him] to sit through
the jury selection process.’’ The defendant also stated
that his family dog was having surgery that morning
and that he very much wanted to be home with her.
The prosecutor responded by noting that his office
and the court already had determined that the defendant
was not eligible for a public defender. The prosecutor
also noted that it was ‘‘obvious’’ that the defendant
understood the nature of the proceedings and that ‘‘he
certainly fulfills the very low standard of . . . compe-
tency.’’ The prosecutor finally noted that if the defen-
dant’s attorneys had any question about his
competency, they would bring those concerns to the
court’s attention, but that there was no evidence of
incompetency.
The court denied the motion to replace counsel, find-
ing that it was ‘‘without merit.’’ The court also explained
to the defendant that he has a right to be present at
the proceedings, and that jury selection was a ‘‘very
critical stage in the proceedings.’’ The defendant
responded: ‘‘I’m in a . . . mental state, and I have a
mental status that I think there’s a question as to
whether or not I could competently endure the trial,
and . . . be of assistance during the course of the trial,
including during the voir dire. And I don’t want to end
up committed again, quite frankly.’’ The court then gave
both of the defendant’s attorneys the opportunity to
speak.
Moynahan stated that his advice would be for the
defendant to be present during jury selection but that
he understood the defendant’s desire to be home with
his family pet. Riccio stated that jury selection was an
important part of the defendant’s trial, that he thought
the defendant could be helpful to counsel, and that he
would prefer to have him there. The court explained
that it also was very wary of the defendant being absent,
especially in the event that a potential juror did not
know him by name but knew him by sight.
The court then ruled that the defendant needed to
be present when the court introduced the case to the
potential jurors, so that they could determine whether
they knew the defendant; if the defendant wanted to
leave after that, the court would not prevent him from
doing so. The court also explained, ‘‘you should be
warned on the record, you’re doing this at your own
peril . . . .’’ The defendant then asked the court to
clarify whether it was ruling that he had to be present
during the court’s introduction of the case to the jury
panel, to which the court replied: ‘‘What I’m suggesting
to you is that weighing all of the interests of everything
involved, and in the interest of justice, and for the good
of the process itself, and for the integrity of the process,
I’m requiring you to be here . . . at the introduction
of the case.’’ The defendant stated that he appreciated
the court articulating its ruling.
At a hearing on July 2, 2014, the defendant did not
want to proceed with the trial because he had filed
his fourth interlocutory appeal the day before, and he
argued that there was an appellate stay in place, and
that, therefore, he had no obligation to respond to the
court. The court gave counsel a copy of its preliminary
charge to the jury, and it considered the defendant’s
request to be absent during the course of the trial. The
following colloquy occurred, in relevant part:
‘‘[The Court]: I want to make sure, as I have done
all along, that the defendant’s rights are assiduously
guarded here in these matters. We’re talking about
important rights of the defendant here, and I want to
have the record reflect that we have done everything
possible to protect the defendant’s rights.
‘‘The record should first reflect that the jury has been
selected in this matter. The defendant voluntarily
absented himself from the selection process . . . .
And now the question that arises is the issue of the
defendant’s presence at the various stages of the pro-
ceedings from this point forward. . . .
‘‘Let me ask you this . . . . Do you understand what
I am saying to you here this morning?
‘‘[The Defendant]: I . . . I comprehend what
you’re saying.
***
‘‘The Court: [N]obody’s trying to trick anybody here.
You have every right, and—and I . . . have warned
you all along that it’s in your best interest that you be
here. You’ve indicated to me for various reasons, up to
this point in time, why you don’t wish to be here. . . .
I heard you. I listened to you. And I may have to . . .
hear you again here this morning on that very issue.
The point is, is that, as you know, you have a constitu-
tional right to be present at all critical stages of the pros-
ecution.
‘‘[The Defendant]: I—I do, Your Honor.
‘‘The Court: And if you wish to waive those rights, I
have to first make sure you understand what you’re
doing. And then secondarily, I’ve got to approve those
waivers in the interest of justice. I mean—
‘‘[The Defendant]: Yeah, I totally understand, Your
Honor.
‘‘The Court: And I just want to make sure that we’re
proceeding in the . . . in the right way, and [that]
you’re fully . . . appreciative of what you’re doing
here. . . . I don’t want to ask you a series of questions
where you say to me, I don’t know what’s going on, or
you don’t respond. I mean, it’s very important that you
understand, and I understand the import of your
response, and the record reflects the import of your
response. And, I’m only doing this to protect you appro-
priately. That’s all. . . .
‘‘And, notwithstanding you have taken a regimen of
medications all along, as I’m sure . . . you have, based
upon some of things you said to me before. I’ve got to
understand that . . . these medications may help you
to better understand what we’re doing.
‘‘[The Defendant]: And . . . in fact, Your Honor, the
odd thing, I am on a regimen. When I come to court,
this was my problem on April 29, 2014 . . . . I don’t
. . . take them because they do have an effect on me.
And . . . when I’m coming to court, I don’t take the
meds. . . . [T]he doctor understand[s] I’m not. . . .
But, he also understands, the minute I get home, I take
them. . . . So, this morning, no, I did not take the nor-
mal . . . medication. . . .
‘‘The Court: All right. . . . So, being off of them, as
you say, does that create a situation where you don’t
have, in your opinion, the mental acuity to understand
what we’re talking about right now?
‘‘[The Defendant]: Your—Your Honor, I . . . hon-
estly don’t know. . . .
‘‘The Court: So, you voluntarily choose not to take
them when you come here to court, is that what I’m
hearing?
‘‘[The Defendant]: I . . . was advised by the doctor
on the days [I’m] going . . . don’t take them before
you leave the house, you know, wait until you get home.
And, so, normally, I take them right after breakfast. So,
I don’t take them when I come to court.
‘‘The Court: So, the question is there then, do you
understand what’s going on here today or not?
‘‘[The Defendant]: I—I believe I do, Your Honor.
‘‘The Court: I mean, that’s the bottom line of all this.
. . . I’ve got to make sure you have an appreciation of
what you’re doing here. That’s—
‘‘[The Defendant]: I . . . believe I do. I think I have—
my psychological and mental status is such that
attending proceedings can be very harmful to me in a—
in terms of my mental and psychological state.
‘‘I believe that my mental and psychological state
does raise questions of my competency to effectively—
in fact, it’s why I felt the need to withdraw as a self-
represented party. It affects my competency to—to
assist and participate in the defense.
‘‘And, in fact, as Your Honor knows from the last—Dr.
Schechter, the psychiatric expert that the state engaged,
one of the questions he had raised on April 29, was
whether I was competent to stand trial. That question
has not been by addressed by an expert.
‘‘But I question it as to whether or not I have the—
I question it to the extent that I did not feel I have the
capability of continuing to serve as a self-represented
party in these proceedings. Now, as a pro se party and—
in—at the appellate level where it’s dealing with matters
of law, that—that’s a different issue presumably. But—
‘‘The Court: So . . . we’re dealing with much more
complex issues on the appellate level and matters that
require extreme mental acuity. You . . . seem to be
able to do that without any difficulty at the appellate
level. But here at the trial level, you’re telling me that
you have difficulty talking to your lawyers here?
‘‘[The Defendant]: . . . . In fact, the reason I am able
to do certain paperwork is, when I do get psychologi-
cally stressed and troubled, I’m able to break away. I’m
able to stop. And I’m able to, essentially, go and do
something else. . . .
‘‘The Court: So, everything you have done with me
over the past few years in terms of the arguments you’ve
made as a self-represented individual, created all kinds
of problems for you. Because the . . . record certainly
doesn’t reflect that in terms of the . . . quality of the
argument you have made before me.
‘‘[The Defendant]: Well, I . . . appreciate that, Your
Honor, but it took an enormous amount of time and
effort . . . and . . . mental anguish and pain to make
. . . it through—to get every one of those filings in and
to be prepared. . . .
‘‘The Court: But no doubt you appreciated the import
of what you were doing all along?
‘‘[The Defendant]: I felt the need to do it, Your
Honor, yes.
‘‘The Court: But you understood what you were
doing?
‘‘[The Defendant]: I . . . I . . . yeah . . . cer-
tainly I—
‘‘The Court: I mean, it would seem to me that the
record . . . would reflect that you certainly under-
stood what you were doing. I mean, there was no indica-
tion that a mental state other than someone who was
on his A game was right there in front of me during
the last two years . . . arguing the various motions
you argued.’’
The defendant then explained that another reason he
did not want to be in the courtroom was because ‘‘not
being present in the courtroom will also lessen the
media attention and lessen the prospect of [his] daugh-
ters having to deal with seeing it on television.’’
The court stated: ‘‘Well, I can only conclude, based
upon this dialogue that we’ve had, that you truly
appreciate then what you’re doing here this morning.
And you fully understand, and anticipate, certain ques-
tions will be asked of you. And you’re fully capable
and competent to respond to those questions at the
present time.
‘‘Anybody else wish to say anything about that conclu-
sion that the court has reached here? Either the state
or defense counsel?’’
‘‘[The Prosecutor]: No, Your Honor.
‘‘Attorney Riccio: Not on that particular issue of com-
petence, Your Honor, no.’’
The court then proceeded to question the defendant
regarding his desire to waive his right to be present
during each individual portion of his criminal trial. After
each question, the defendant acknowledged that he
desired to waive his right. Shortly thereafter the court
stated: ‘‘All right. I think the defendant has expressed
himself rather well. And handled himself very well here
this morning.
‘‘[The Defendant]: Thank you, Your Honor.
‘‘The Court: And, I think the argument that he had
made before this court was very astute . . . .
‘‘The Court: You do understand there are certain
downsides to you not being here in terms of assisting
. . . in terms of cross-examination of any witnesses
that may be presented. You could be of invaluable assis-
tance to those lawyers relative to that. The lawyers are
on their own if you’re not here to help them out, to
discuss what’s being testified to here. You understand
that? . . .
‘‘[The Defendant]: Yeah, I . . . do, Your Honor. And
. . . in fact, if I was in a different mental and psycholog-
ical state, I would very much want to be here. I don’t
think I am psychologically capable of being here. I don’t
think I can be of assistance to counsels through the
entire trial.
‘‘And . . . that’s why I think it’s in my best interest,
for my survival, to not be here. And, so I understand
the downside, Your Honor. If that . . . I just think the
. . . I see another downside, and that is more over-
whelming to me than the downside of not being
here. . . .
‘‘The Court: . . . State wish to say anything further?
‘‘[The Prosecutor]: No, Your Honor.
‘‘The Court: Anything else from defense counsel here?
‘‘Attorney Moynahan: No, Your Honor.’’
‘‘[The Defendant]: Your Honor . . . I am not waiving
any fifth amendment right by anything that’s been said
here. And that’s been my main concern. I am not waiving
any fifth amendment right.
‘‘The Court: Okay. I just want to make sure then the
record is reflective that if the court feels, in the interest
of justice, your presence is required at any of those
critical stages of the proceedings, that the court will
exercise its prerogative to require you to be here.
‘‘[The Defendant]: Your—Your Honor, I understand
the . . . vast authority of the court, and I’ve respected
it. I’m an officer of the court. I have been here every
time the court has asked me to be here, told me to be
here. There’s never been any question. . . .
‘‘The Court: All right. The court finds that the defen-
dant has knowingly and voluntarily, freely, and with a
complete understanding of the consequences, waived
his right to be present during the course of the trial in
this matter. From the swearing in of the jury itself,
through deliberations.
‘‘The court reserves the right, in the interest of justice,
to require the defendant to be here at any particular
point in time. The defendant recognizes the power of
the court to do so, and the record will reflect the same.’’
The defendant now claims that these colloquies
should have triggered the court to inquire about the
defendant’s competency to stand trial and to order a
competency evaluation. The state contends that there
was no substantial evidence proffered during these
hearings or in the record that would have led the court
to suspect that the defendant could not understand the
proceedings or assist in his defense, and, accordingly,
the court had no obligation to inquire into the defen-
dant’s competency to stand trial. We agree with the
state.
‘‘The United States Supreme Court has established
that the due process clause of the fourteenth amend-
ment to the United States constitution prohibits the
criminal prosecution of a defendant who is not compe-
tent to stand trial. . . . Similarly, due process demands
that, once a defendant’s competence to stand trial has
been sufficiently called into question, the trial court
must order an adequate hearing on his competence to
stand trial . . . .
‘‘In determining whether a defendant’s competence
has been sufficiently called into doubt so as to necessi-
tate a hearing on the matter, the United States Supreme
Court has cautioned that there is no single approach
or factor that is most important in establishing compe-
tency or lack thereof. . . . [E]vidence of a defendant’s
irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial are all
relevant in determining whether further inquiry is
required, but that even one of these factors standing
alone may, in some circumstances, be sufficient. There
are, of course, no fixed or immutable signs which invari-
ably indicate the need for further inquiry to determine
fitness to proceed; the question is often a difficult one
in which a wide range of manifestations and subtle
nuances are implicated. That they are difficult to evalu-
ate is suggested by the varying opinions trained psychia-
trists can entertain on the same facts. . . .
‘‘This constitutional background informs the manner
in which [General Statutes] § 54-56d, this state’s statu-
tory scheme for determining a defendant’s competence,
operates to ensure that a defendant’s right to be compe-
tent while standing trial is assured. Under Connecticut
law, a defendant is initially presumed to be competent
and, unless the court or state initially raises the issue
of competency, the defendant is assigned the burden
of proving his or her lack of competence by a preponder-
ance of the evidence. . . . However, Connecticut jeal-
ously guards this right. . . . Any party before the
court—including the court itself—may raise the issue
of the defendant’s competency at any time during a
criminal proceeding by requesting that the court order
a competency examination. . . . If the court deter-
mines that a party’s request for the defendant to
undergo a competency examination is justified, and so
long as the court concludes that there is probable cause
to believe that the defendant committed the crime of
which he or she has been accused, the court must order
a competency examination of the defendant.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Dort, 315 Conn. 151, 162–64, 106 A.3d 277 (2014).
‘‘[T]he process through which a court determines that
such a request is, in fact, justified [is not well defined].
This aspect of the process has largely been left to the
courts. Section 54-56d provides that a defendant shall
not be tried, convicted or sentenced while incompetent
and permits a competency hearing to be held whenever
it appears that the defendant is unable to understand
the proceedings against him or to assist in his own
defense. As a matter of due process, the trial court is
required to conduct an independent inquiry into the
defendant’s competence whenever he makes specific
factual allegations that, if true, would constitute sub-
stantial evidence of mental impairment. . . . Substan-
tial evidence is a term of art. Evidence encompasses
all information properly before the court, whether it is
in the form of testimony or exhibits formally admitted
or it is in the form of medical reports or other kinds
of reports that have been filed with the court. Evidence
is substantial if it raises a reasonable doubt about the
defendant’s competency. . . . The trial court should
carefully weigh the need for a hearing in each case, but
this is not to say that it should be available on demand.
The decision to grant a hearing requires the exercise
of sound judicial discretion. . . . State v. Lloyd, 199
Conn. 359, 364–66, 507 A.2d 992 (1986).’’ (Internal quota-
tion marks omitted.) State v. Dort, supra, 315 Conn. 165.
Our review of the transcripts of all three hearings,
as set forth in particular detail herein, reveals that there
was neither evidence nor a serious suggestion that the
defendant was incompetent to stand trial. Under our
law, the trial court presumes the defendant to be compe-
tent to stand trial unless there is evidence of incompe-
tence. See id., 162–63.
On June 12, 2014, the defendant informed the court
that he felt he was no longer capable of self-representa-
tion because of severe anxiety. He also stated that
Schechter had questioned whether the defendant was
competent to stand trial; Schechter, however, was the
state’s expert who did not evaluate the defendant
because the defendant refused to sign Schechter’s con-
sent form. The court immediately questioned what the
defendant meant by that statement and whether he was
saying that he did not have the ability to understand the
proceedings or assist in his defense. A careful review
of the transcript reveals that the defendant was not
claiming that he did not have the ability to understand
the proceedings or assist in his defense. Rather, the
defendant himself clarified that his concern was that,
due to his mental health, he just did not have the psychi-
atric or mental capability of serving as a self-repre-
sented party at this time, and he simply wanted to make
sure that he would be represented by counsel moving
forward.14 In response thereto the court told the defen-
dant that it would appoint counsel for him without
difficulty, and the court immediately reappointed coun-
sel for the defendant. There was no substantial evidence
that was presented that would have called into question
the defendant’s competence to stand trial.
At the June 18, 2014 hearing, the defendant explained
that he thought it would be ‘‘psychologically taxing’’
to sit through trial and that he could not ‘‘offer any
assistance to [his] legal counsels,’’ and that, despite his
cordiality with current counsel, he wanted the court to
appoint a special public defender. The defendant also
wanted to be excused from jury selection because his
family dog was recovering from surgery. The court
declined to appoint a special public defender because
the defendant did not qualify financially for such ser-
vices, and the court ruled that the defendant was
required to attend the proceedings during the introduc-
tion of the jury to ensure that no one selected knew
the defendant. There was no substantial evidence pre-
sented during this hearing that would have called into
question the defendant’s competence to stand trial.
On July 2, 2014, the defendant did not want to proceed
with the trial because he had filed his fourth interlocu-
tory appeal the day before, and he argued that there
was an appellate stay in place. The defendant then
argued his request not to be present during the eviden-
tiary portion of the trial. He told the court that he could
not handle the stress of being present at the trial and
that he did not think he would be helpful to counsel. The
trial court took great pains to question the defendant
thoroughly in order to ensure that the defendant knew
his rights and understood the dangers of not being pre-
sent during trial. The court noted the clever legal argu-
ments put forth by the defendant over the course of
the proceedings and that he had been helpful to counsel
on several occasions. The court also ascertained that
the defendant fully understood what the court was tell-
ing him and that he had a full appreciation for what
he was doing. The defendant, on several occasions,
confirmed that he understood. Neither the defendant
nor his counsel presented any evidence that the defen-
dant was not competent to stand trial during that
hearing.
On the basis of the foregoing, we conclude that the
defendant has failed to demonstrate that the court
deprived him of his right to due process of law when
it did not hold, sua sponte, a competency hearing or
order a competency evaluation. Substantial evidence
was not presented during the hearings of June 12, June
18, or July 2, 2014, either individually or when consid-
ered in toto, that should have triggered the court to
conduct such a hearing or to order an evaluation.
IV
The defendant next claims that ‘‘state action inter-
fered with the defendant’s right to counsel and deprived
him of due process.’’ Specifically, he argues that the
prosecutor was obligated, but failed, to secure the
release of reasonable funds for the defense in a timely
manner, which left him with insufficient funds to secure
his experts that were critical to his defense. He claims
that the prosecutor’s failure to file a writ of mandamus
barred him from accessing his personal assets and funds
to mount a successful defense and that the court should
have granted his motion to dismiss on this basis. The
state argues that the court properly denied the motion
to dismiss because the defendant’s claim is unsupported
by the record. We agree that the court properly denied
the defendant’s motion to dismiss.
The following additional facts are helpful. During the
course of the proceedings in the trial court, the defen-
dant filed motions to dismiss the charges against him
on July 18, 2012, August 7, 2012, and April 23, 2013. The
defendant contended that he had been denied ‘‘access to
every penny of [his] sizable personal funds, for use in
his legal defense.’’ He also argued in relevant part that
the state was preventing him from presenting an effec-
tive defense and was depriving him of his right to coun-
sel of his choice. He claims that the state deprived him
of this right because the Office of the Chief State’s
Attorney did not assist him by filing a writ of mandamus
to help him secure the release of funds in the civil case
that his wife had filed against him, and in which she
had secured a prejudgment remedy, and in his marital
dissolution case, in which his assets were frozen.
The court denied the motions to dismiss in a March
12, 2014 oral decision, which provided in relevant part:
‘‘[T]he defendant argues that he was denied, essentially,
any funds for defense counsel and costs. His argument
seems to be that the decisions made in the civil and
dissolution proceedings denied him, ‘access to every
penny of the defendant’s sizable personal funds, for use
in his legal defense.’
‘‘The record simply does not support his argument.
. . . Accordingly, the court concludes that the financial
assertions he makes as a result of other court action
are first, contrary to fact, and second, do not rise to
the level of any kind of asserted state action, so as to
affect his due process rights in the criminal case.
‘‘The history of the case discloses that the defendant
has never been denied counsel of his choice, or access
to funds for the purpose of his consulting and obtaining
expert opinion and testimony. Indeed, until the defen-
dant exercised his constitutional prerogative to repre-
sent himself, he was represented in all proceedings,
criminal, civil and dissolution, by experienced and com-
petent counsel.
‘‘His access to counsel in the criminal case has been
guarded by the court in their retention as standby coun-
sel. The record should reflect standby counsel is sitting
to my right in the jury box here today. They have always
been in attendance with regard to the criminal proceed-
ings. . . .
‘‘Simply put, the claims made by the defendant that
the civil and dissolution proceedings precluded his due
process in this the criminal case are without merit.’’
We begin by noting the standard that this court
applies in reviewing a trial court’s ruling on a motion
to dismiss. ‘‘A motion to dismiss . . . properly attacks
the jurisdiction of the court, essentially asserting that
the plaintiff cannot as a matter of law and fact state a
cause of action that should be heard by the court. . . .
[This court’s] review of the trial court’s ultimate legal
conclusion and resulting [denial] of the motion to dis-
miss will be de novo. . . . Factual findings underlying
the court’s decision, however, will not be disturbed
unless they are clearly erroneous. . . . The applicable
legal standard of review for the denial of a motion
to dismiss, therefore, generally turns on whether the
appellant seeks to challenge the legal conclusions of
the trial court or its factual determinations.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Golodner, 305 Conn. 330, 338–39, 46 A.3d 71 (2012).
‘‘It is well settled that the guarantee of assistance of
counsel under the sixth amendment to the United States
constitution encompasses the right to select one’s own
attorney. It is hardly necessary to say that, the right to
counsel being conceded, a defendant should be
afforded a fair opportunity to secure counsel of his own
choice. . . . [I]t is well settled that if the decision by
a trial court deprived a defendant of his constitutional
right to counsel of choice, prejudice will be presumed.’’
(Citation omitted; internal quotation marks omitted.)
State v. Johnson, 140 Conn. App. 479, 486–87, 59 A.3d
366, cert. denied, 308 Conn. 917, 62 A.3d 527 (2013).
‘‘Once the right to counsel has attached and been
asserted, the State must of course honor it. This means
more than simply that the State cannot prevent the
accused from obtaining the assistance of counsel. The
Sixth Amendment also imposes on the State an affirma-
tive obligation to respect and preserve the accused’s
choice to seek this assistance. We have on several occa-
sions been called upon to clarify the scope of the State’s
obligation in this regard, and have made clear that, at
the very least, the prosecutor . . . [has] an affirmative
obligation not to act in a manner that circumvents and
thereby dilutes the protection afforded by the right to
counsel.’’ Maine v. Moulton, 474 U.S. 159, 170–71, 106
S. Ct. 477, 88 L. Ed. 2d 481 (1985).
On appeal, the defendant argues that he did not have
access to sufficient funds to obtain counsel of his choice
and to secure experts because his assets were frozen
in other court actions, and that the prosecutor had an
obligation to help him obtain the release of those funds
by filing a writ of mandamus. The defendant argues
that the prosecutor’s failure to file this writ deprived
him of certain constitutional rights because it affected
his ability to hire counsel of his choice and obtain
experts.
Because the court clearly found that defendant ‘‘has
never been denied counsel of his choice, or access to
funds for the purpose of his consulting and obtaining
expert opinion and testimony,’’ and the defendant does
not challenge this factual finding as clearly erroneous,
his claim necessarily fails. Therefore, even if the defen-
dant could establish that a prosecutor has some obliga-
tion to assist a defendant with the release of additional
funds in cases such as this, the court specifically found
that, in this particular case, the defendant had not been
denied counsel of his choice or access to funds. Accord-
ingly, the defendant’s claim is without merit.
V
The defendant also claims that the trial court improp-
erly continued to conduct the defendant’s trial despite
the existence of an automatic appellate stay, which
rendered the results of the trial void ab initio. Specifi-
cally, the defendant argues: ‘‘The trial court ignored
the automatic appellate stay that [arose] pursuant to
Practice Book § 61-13 when it proceeded to trial on
July 7, 2014. During the stay, the trial court lacked
jurisdiction to conduct proceedings; consequently, [the
defendant’s] trial and convictions on all counts are void
ad initio. He should be afforded a new trial where the
trial court properly holds jurisdiction to conduct pro-
ceedings.’’ The defendant asserts that he had obtained
an automatic stay pursuant to Practice Book § 61-13
(b), and that only the Appellate Court could consider
whether his appeal was viable.
The state argues: ‘‘Contrary to the defendant’s asser-
tion . . . the filing of his fourth jurisdictionally defec-
tive interlocutory appeal did not result in an enforceable
appellate stay and his trial was not void ab initio.’’
(Citation omitted.) The state contends that the court
properly proceeded to trial. We agree with the state.
The following facts inform our review. On July 1,
2014, the defendant filed a pro se interlocutory appeal
from the trial court’s denial of his motion to reconsider
the appointment of a special public defender in lieu of
Riccio and Moynahan, which was docketed as AC 36918.
At a July 2, 2014 hearing, the defendant told the court
that an appellate stay of further trial court proceedings
was in place because he had filed another interlocutory
appeal. The court asked counsel if either of them had
filed the appeal, to which they responded in the nega-
tive. The court explained that there was no hybrid repre-
sentation in this state, and it essentially stated that it
would not recognize a stay in the proceeding where the
defendant had filed another interlocutory appeal. The
court resumed the hearing.
The evidentiary portion of the defendant’s criminal
trial commenced on July 7, 2014. On July 8, 2014, the
state filed a motion to dismiss the defendant’s July
1, 2014 interlocutory appeal on the ground that the
Appellate Court lacked jurisdiction, and it requested
that the matter be reviewed expeditiously.15 While the
appeal was pending, the jury, on July 11, 2014, returned
its verdict. The defendant claims that the trial court
proceeded in violation of the automatic stay and that
his convictions, therefore, are void. We disagree.
Whether an appellate stay of execution was in effect
during the underlying criminal trial requires us to con-
sider our rules of practice and case law concerning
appellate stays. ‘‘The interpretive construction of the
rules of practice is to be governed by the same princi-
ples as those regulating statutory interpretation. . . .
The interpretation and application of a statute, and thus
a Practice Book provision, involves a question of law
over which our review is plenary.’’ (Internal quotation
marks omitted.) Cunniffe v. Cunniffe, 150 Conn. App.
419, 429, 91 A.3d 497, cert. denied, 314 Conn. 935, 102
A.3d 1112 (2014).
The specific practice book rule for stays in criminal
cases that the defendant argues governs his claim is
Practice Book § 61-13 (b). Practice Book (Rev. to 2014)
§ 61-13 provides in relevant part: ‘‘Except as otherwise
provided in this rule, a judgment in a criminal case shall
be stayed from the time of the judgment until the time
to take an appeal has expired, and then, if an appeal
is filed, until ten days after its final determination. The
stay provisions apply to an appeal from a judgment, to
an appeal from a judgment on a petition for a new trial
and to a writ of error, where those matters arise from
a criminal conviction or sentence. Unless otherwise
provided in this rule, all stays are subject to termination
under subsection (d). . . .’’
‘‘(b) Appeal by defendant from presentence order
‘‘In an appeal from a presentence order where the
defendant claims that an existing right, such as a right
not to be tried, will be irreparably lost if the order is
not reviewed immediately, the appeal shall stay auto-
matically further proceedings in the trial court. . . .’’
As our Supreme Court has observed: ‘‘In a criminal
proceeding, there is no final judgment until the imposi-
tion of a sentence. State v. Coleman, 202 Conn. 86, 89,
519 A.2d 1201(1987); State v. Grotton, 180 Conn. 290,
293, 429 A.2d 871 (1980). . . . The general rule is . . .
that interlocutory orders in criminal cases are not imme-
diately appealable. United States v. MacDonald, 435
U.S. 850, 857, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978)
(denial of motion for speedy trial); Cogen v. United
States, 278 U.S. 221, 227–28, 49 S. Ct. 118, 73 L. Ed. 275(1929) (denial of motion for return of seized property);
State v. Atkins, 203 Conn. 33, 34, 522 A.2d 1234 (1987)
(finding of probable cause to believe criminal offense
has been committed); In re Juvenile Appeal (85–AB),
195 Conn. 303, 306, 488 A.2d 778 (1985) (denial of a
motion to transfer to criminal docket) [superseded by
statute as stated in In re Keijam T., 221 Conn. 109, 602
A.2d 967 (1992)]; State v. Longo, 192 Conn. 85, 89, 469
A.2d 1220 (1984) (denial of motion for youthful offender
status); State v. Spendolini, 189 Conn. 92, 97, 454 A.2d
720 (1983) (denial of motion for accelerated rehabilita-
tion); State v. Grotton, supra, 295–96 (granting of state’s
motion to take nontestimonial evidence from defen-
dant); State v. Kemp, 124 Conn. 639, 646–47, 1 A.2d
761 (1938) (permitting defendant access to grand jury
minutes); compare State v. Aillon, 182 Conn. 124, 126,
438 A.2d 30 (1980) [(colorable double jeopardy claim
immediately appealable)], cert. denied, 449 U.S. 1090,
101 S. Ct. 883, 66 L. Ed. 2d 817 (1981).’’ State v. Ayala,
222 Conn. 331, 339, 610 A.2d 1162 (1992).
As our Supreme Court explained: ‘‘[W]e have been
disinclined . . . to extend the privilege of an interlocu-
tory appeal in criminal cases beyond the double jeop-
ardy circumstance. This reluctance stems principally
from our concern that to allow such appeals would
greatly delay the orderly progress of criminal prosecu-
tions in the trial court. . . . [T]he opportunity to appeal
in such a situation might well serve the purpose of
parties who desire for their own ends to postpone the
final determination of the issues. . . . It has been
widely recognized that strict adherence to the final judg-
ment rule is necessary in criminal cases because the
delays and disruptions attendant upon intermediate
appeal are especially inimical to the effective and fair
administration of the criminal law.’’ (Internal quotation
marks omitted.) State v. Fielding, 296 Conn. 26, 40, 994
A.2d 96 (2010); see also Cunniffe v. Cunniffe, supra,
150 Conn. App. 430–31 (holding that no appellate stay
is created under Practice Book § 61-11 by appeal from
order that is not immediately appealable; ‘‘[t]o conclude
otherwise would risk undermining our important public
policy disfavoring a disruptive and inefficient judicial
process because it would provide parties with a tool to
unduly delay proceedings by filing premature appeals’’).
‘‘We have recognized, however, in both criminal and
civil cases, that certain otherwise interlocutory orders
may be final judgments for appeal purposes, and the
courts may deem interlocutory orders or rulings to have
the attributes of a final judgment if they fit within either
of the two prongs of the test set forth in State v. Curcio,
[191 Conn. 27, 31, 463 A.2d 566 (1983)]. . . . BNY West-
ern Trust v. Roman, 295 Conn. 194, 202, 990 A.2d 853(2010); see State v. Jenkins, 288 Conn. 610, 618, 954
A.2d 806 (2008). Under Curcio, interlocutory orders
are immediately appealable if the order or ruling (1)
terminates a separate and distinct proceeding, or (2)
so concludes the rights of the parties that further pro-
ceedings cannot affect them.’’ (Internal quotation marks
omitted.) State v. Fielding, supra, 296 Conn. 37. For
an interlocutory order to be immediately appealable
pursuant to Practice Book § 61-13 (b), therefore, it must
meet the Curcio test. Absent meeting this test, there is
no automatic appellate stay when a party takes a § 61-
13 (b) appeal.
‘‘The first prong of the Curcio test . . . requires that
the order being appealed from be severable from the
central cause of action so that the main action can
proceed independent of the ancillary proceeding. . . .
Satisfaction of the second prong of the Curcio test
requires the parties seeking to appeal to establish that
the trial court’s order threatens the preservation of a
right already secured to them and that that right will be
irretrievably lost and the [party] irreparably harmed
unless they may immediately appeal. . . . An essential
predicate to the applicability of this prong is the identifi-
cation of jeopardy to [either] a statutory or constitu-
tional right that the interlocutory appeal seeks to
vindicate.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Cunniffe v. Cunniffe, supra,
150 Conn. App. 431–32. ‘‘[T]he second prong of Curcio
requires that the trial court’s order threaten the preser-
vation of a right already secured and only then do we
examine whether that right will be irretrievably lost and
the party irreparably harmed unless it may immediately
appeal.’’ (Emphasis in original.) State v. Fielding, supra,296 Conn. 43 n.10.
In the present case, we are dealing with an interlocu-
tory order in a criminal case. Both Practice Book § 61-
13 (b) and Curcio’s second prong require a showing
that the court’s order from which the defendant sought
to appeal threatened the loss of an existing right
already secured to him. Both also require that the
existing right would be irretrievably lost, such that the
defendant would be irreparably harmed, without the
ability to take an immediate appeal. The defendant did
not meet this requirement, and, therefore, the trial court
properly declined to recognize an automatic stay of
the proceedings.
On appeal, the defendant argues that the court vio-
lated an automatic appellate stay because the right at
issue in his interlocutory appeal, AC 36918, was his right
to counsel or, perhaps more specifically, his ‘‘right’’ to
be appointed a special public defender rather than his
former attorneys. We conclude that the court did not
proceed in violation of automatic stay, because there
was no automatic stay in the proceedings. The defen-
dant’s interlocutory appeal did not involve an existing
right that already was secured to him, nor would the
defendant have been irreparably harmed, if he were not
permitted an immediate appeal from the court’s order.
Here, this defendant was not indigent and clearly had
no existing right to the appointment of a special public
defender in lieu of the reappointment of prior counsel.
Furthermore, to be sure, were the defendant not able
to appeal immediately the court’s order denying his
motion to reconsider his request for the appointment
of a special public defender, he would proceed to trial,
where there exists the possibility that he could be found
not guilty, thereby suffering no harm from the court’s
denial of his motion to reconsider the appointment of
a special public defender. If, on the other hand, he were
to be found guilty and a final judgment were rendered
by the court’s imposition of the sentence, the defendant
then would have a right to appeal from any adverse
rulings on his motion to reconsider the appointment of
a special public defender; see, e.g., State v. Guitard,
61 Conn. App. 531, 535–39, 765 A.2d 30 (Appellate Court
considered and rejected defendant’s postconviction
challenge to trial court’s denial of motion for standby
counsel), cert. denied, 255 Conn. 952, 770 A.2d 32(2001); which is exactly what the defendant has done
in the present appeal. See also part VI of this opinion.
If the defendant were successful on that claim in this
appeal, he then would secure a new trial with the assis-
tance of the special public defender. Under either sce-
nario, he would not have lost any right that is
irretrievable, and he would have suffered no harm that
is irreparable.
Consequently, because the defendant’s interlocutory
appeal does not fall within Practice Book § 61-13 (b)
or Curcio’s second prong;16 see State v. Fielding, supra,296 Conn. 42–43 (trial court order that forms basis of
interlocutory appeal must threaten preservation of right
already secured and said right must exist indepen-
dently of order from which appeal has been taken); no
enforceable appellate stay arose from his filing of the
appeal. See generally Cunniffe v. Cunniffe, supra, 150
Conn. App. 429–30 (holding that no enforceable appel-
late stay of execution results from filing jurisdictionally
infirm appeal); cf. Hartford Federal Savings & Loan
Assn. v. Tucker, 192 Conn. 1, 5, 469 A.2d 778 (1984)
(‘‘[b]ecause the order appointing the rent receiver was
not immediately appealable, the defendant’s claim to a
stay of the receivership pending an appeal is
untenable’’).
Accordingly, we conclude that the court did not act
in violation of an appellate stay when it proceeded with
trial in spite of the defendant’s fourth interlocutory
appeal from a nonappealable order. The defendant’s
appeal was not jurisdictionally viable at the time it was
filed, and, therefore, the court did not act in violation
of an automatic appellate stay.
VI
The defendant next claims that the trial court abused
its discretion by not appointing a special public
defender, ultimately violating his constitutional rights
to counsel and to due process of law. He argues that
he ‘‘did not have access to his assets to a degree suffi-
cient to fund his defense . . . . An indigent defendant
had a better chance of a funded and effective defense
than [the defendant]. The mental disease or defect
defense is complex and expensive. The burden of proof
falls to the defendant, requiring him to assert a case-
in-chief, not merely cross-examine state witnesses and
then rest; it requires the testimony of mental health
professionals with high hourly rates. Raising this
defense made the case extraordinary; the court should
have appointed assigned counsel.’’ We are not per-
suaded.
The following facts inform our review. On April 10,
2013, there was a question raised as to whether the
defendant might be indigent for purposes of qualifying
for a public defender. The defendant then applied for
those services. On April 12, 2013, Butler, an attorney
with the public defender’s office, informed the court
that the defendant had filed an application with his
office, but that it had been determined that the defen-
dant was not indigent and, therefore, did not qualify
for the services of his office. The defendant stated that
Butler had been very helpful, and he thanked him for
his assistance. The defendant then reiterated his desire
to represent himself, which the court permitted, but the
court also appointed Riccio and Moynahan as standby
counsel. At that time, the defendant also confirmed for
the court that he had sufficient funds for his experts.
On April 23, 2013, the defendant appealed to the Supe-
rior Court the decision of the public defender’s office
that he did not qualify financially for its services. In
its memorandum of decision dated February 20, 2014,
issued after a full evidentiary hearing on the matter,
the court upheld that decision, concluding that the
defendant was not indigent and had funds available
to him.
On March 12, 2014, when the court discussed its
February 20, 2014 decision, the defendant stated: ‘‘I do
believe, that should extraordinary circumstances arise,
as envisioned under the statute, over the course of
the remaining proceedings in this matter, that I would
potentially again seek a public defender based on
extraordinary circumstances, which is at the discretion
. . . of Your Honor or the presiding judge.’’
On June 12, 2014, after learning that his appellate
petitions had been dismissed, all stays had been lifted,
and the court was ready to proceed with jury selection,
the defendant told the court that he wanted to withdraw
his invocation of his right to self-representation. In
response, the court reappointed Riccio and Moynahan,
both of whom had been either full counsel or standby
counsel throughout this matter. The defendant objected
to their reappointment and stated that it was ‘‘not his
conclusion that they [should] not continued to repre-
sent [him],’’ but, rather, it was Riccio and Moynahan
who did not want to represent him. The defendant asked
for the appointment of different counsel, which the
court denied.17 The defendant thereafter filed a motion
asking the court to reconsider its decision and
requesting the appointment of a special public defender.
During oral argument on the motion to reconsider, the
defendant acknowledged that he had a ‘‘cordial’’ rela-
tionship with Riccio and Moynahan, but he stated that
it would be ‘‘unfair’’ to them to be brought back in as
full counsel. The court denied the motion. The defen-
dant now claims that the court abused its discretion
in not appointing a special public defender. We are
not persuaded.
Practice Book § 44-4 provides: ‘‘When a defendant
has been permitted to proceed without the assistance
of counsel, the judicial authority may appoint standby
counsel, especially in cases expected to be long or com-
plicated or in which there are multiple defendants. A
public defender or special public defender may be
appointed as standby counsel only if the defendant is
indigent and qualifies for appointment of counsel under
General Statutes § 51-296, except that in extraordinary
circumstances the judicial authority, in its discretion,
may appoint a special public defender for a defendant
who is not indigent.’’ (Emphasis added.)
Here, the defendant did not qualify financially for the
services of the office of the public defender. He argues,
nonetheless, that the court should have appointed a
special public defender as an exercise of its discretion
because his defense of mental disease or defect made
the case extraordinary. We recognize that our Supreme
Court recently held that ‘‘an indigent self-represented
criminal defendant has a fourteenth amendment due
process right to publically funded expert or investiga-
tive services, to the extent that such services are reason-
ably necessary to formulate and to present an adequate
defense to pending criminal charges’’; State v. Wang,
312 Conn. 222, 231, 92 A.3d 220 (2014); and the Division
of Public Defender Services ‘‘is statutorily authorized
to fund the reasonably necessary ancillary defense costs
of indigent self-represented criminal defendants.’’ Id.,
249. In this case, however, the defendant does not
explain why the circumstances of this particular case
or of his defense of mental disease or defect are any
more ‘‘extraordinary’’ pursuant to Practice Book § 44-
4 than those of any other case, or whether he contends
that the court always should appoint a special public
defender for defendants who raise such a defense or
who have limited funds but are not indigent.
Furthermore, the facts of this case demonstrate that
on April 12, 2013, the defendant confirmed for the court
that he had sufficient funds for his experts. At the March
12, 2014 hearing, the defendant told the court that if
extraordinary circumstances arose, he would alert the
court, and he would ‘‘seek a public defender based on
extraordinary circumstances’’ at that time. On June 12,
2014, approximately one month after the court had pre-
cluded his defense of mental disease or defect, the
defendant informed the court that he no longer wanted
to represent himself because of ‘‘severe anxiety and
mental issues’’ associated with that anxiety. He stated
that this was an extraordinary circumstance and that
he needed appointed counsel. In response, the court
reappointed Riccio and Moynahan, both of whom were
quite familiar with the case. The defendant then filed
a motion for reconsideration, asking the court to
appoint a special public defender. The court denied
the motion.
Although the defendant claims that this case was so
extraordinary that it was an abuse of discretion for
the court to deny him the services of a special public
defender, he points to nothing specific that sets this
case apart from other cases in which a defendant may
have limited funds, such that it would be an abuse of
the trial court’s discretion not to appoint a special public
defender. In this case, the court reappointed Riccio and
Moynahan, seasoned trial attorneys, as full counsel for
the defendant; both the public defender’s office and the
trial court had determined that the defendant was not
indigent for purposes of entitlement to public defender
services; and the defendant, himself, informed the court
in April, 2013, that he had sufficient funds for his
experts. On the basis of the foregoing, we find no merit
to the defendant’s claim.
VII
The defendant next claims that the trial court violated
his rights to due process of law and to present a defense
when it refused to instruct the jury on the defenses of
renunciation and diminished capacity as requested by
the defendant. After setting forth our law concerning
a defendant’s entitlement to an instruction of a theory
of defense, we will consider each requested instruction
in turn.
‘‘A fundamental element of due process is the right
of a defendant charged with a crime to establish a
defense . . . . We have said that a defendant is entitled
to have the court present instructions to the jury relating
to any theory of the defense for which there is any
foundation in the evidence, even if weak or incredible.
. . . We must consider the evidence presented at trial
in the light most favorable to supporting the defendant’s
request to charge. . . . An instruction on a legally rec-
ognized theory of defense, however, is warranted only
if the evidence indicates the availability of that defense.
. . . The trial court should not submit an issue to the
jury that is unsupported by the facts in evidence.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Adams, 225 Conn. 270, 283, 623 A.2d 42 (1993).
A
The defendant claims that the trial court violated his
rights to due process of law and to present a defense
when it refused to instruct the jury on the defense of
renunciation. He argues: ‘‘[The defendant] was entitled
to a renunciation instruction based on the evidence.
Assuming, arguendo, that [he] had the intent to kill his
wife, he abandoned his attempt completely, voluntarily,
and motivated only by his own purpose and intent and
not by outside forces.’’ We disagree.
‘‘The defendant was entitled to have the court instruct
the jury on the defense of renunciation if there was any
evidence to raise a reasonable doubt concerning the
existence of the defense. . . . The question on appeal
is whether, viewing the evidence most favorable to the
defendant’s request for charge, we perceive any evi-
dence supporting a defense of renunciation presented
at trial. . . .
‘‘At the outset, we note that the defense of renuncia-
tion is extremely narrow. . . . Renunciation generally
requires not only desistance, but more active rejection,
and usually contains specific subjective requirements,
such as a complete and voluntary renunciation. . . .
Connecticut has patterned its criminal code after the
Model Penal Code, which permits the defense only if
the defendant terminates his complicity by, inter alia,
wholly depriving his complicity of its effectiveness in
the commission of the offense. . . . A mere change of
heart or flight from the crime scene does not establish
the defense of renunciation.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Adams, supra, 225 Conn. 283–84.
Here, although the defendant argues that the evi-
dence demonstrated that ‘‘he abandoned his attempt
[to kill] completely, voluntarily, and motivated only by
his own purpose and intent and not by outside forces,’’
it is clear from the evidence that any purported aban-
donment occurred after the attempt to kill had been
completed.
‘‘An attempt is complete and punishable, regardless
of its failure due to interruption, other extrinsic causes
or its likelihood of success, if an act is done with
intent to commit the crime, which is adapted to the
perpetration of it . . . . The act or acts must consti-
tute more than mere preparation but at least must be
the start of a line of conduct which will lead naturally
to the commission of a crime which appears to [a defen-
dant] at least to be possible of commission by the means
adopted. . . . A defendant, therefore, is criminally cul-
pable because the conduct causes a sufficient risk of
harm to be treated as a crime in and of itself.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) State v. Rochette, 25 Conn. App. 298, 305, 594
A.2d 1006, cert. denied, 220 Conn. 912, 597 A.2d 337(1991), cert. denied, 502 U.S. 1045, 112 S. Ct. 905, 116
L. Ed. 2d 806 (1992). ‘‘An attempt is an inchoate crime,
meaning that it is unfinished or begun with the proper
intent but not finished.’’ (Internal quotation marks omit-
ted.) State v. Jones, 96 Conn. App. 634, 641, 902 A.2d
17, cert. denied, 280 Conn. 919, 908 A.2d 544 (2006).
In the present case, there was no evidence that the
defendant had abandoned or renunciated an attempt
to kill his wife before he acted on his attempt to kill
her. See State v. Carter, 141 Conn. App. 377, 391–92,
61 A.3d 1103 (2013) (defendant’s change of mind and
abandonment of original purpose to shoot and injure
victim was irrelevant because, by that time, attempt
crime already completed), aff’d, 317 Conn. 845, 120
A.3d 1229 (2015). Accordingly, there is no merit to the
defendant’s claim that the court improperly declined
to charge on a defense of renunciation.
B
The defendant next claims that the trial court violated
his rights to due process of law and to present a defense
when it refused to instruct the jury on the defense of
diminished capacity. He argues that the testimony at
trial ‘‘reasonably supported a diminished capacity
instruction. His conduct was precipitated by service of
divorce papers, rendering him devastated, irrational,
and suicidal. His behavior thereafter vacillated between
volatile and a flat affect.’’ We disagree.
The record reveals that the defendant submitted a
request to charge on the defense of diminished capacity
on July 7, 2014. In arguing his entitlement to such a
charge, the defendant argued that the evidence demon-
strated that he was extremely upset after having been
served with divorce papers, that he was irrational, and
that he wanted to kill himself. The state argued that
just because the defendant had stated that he wanted
to kill himself did not mean that there was evidence
that he had diminished capacity while he was commit-
ting these crimes. The court agreed with the state, hold-
ing that there was no evidence that the defendant had
an inability to form the specific intent to commit the
underlying crimes, and, therefore, he was not entitled
to a charge on diminished capacity.
‘‘The doctrine of diminished capacity means that if
the defendant, because of a limited or impaired mental
capacity, did not have that specific intent to commit
the acts which comprise the crime [charged] because
of a limited or impaired mental capacity, then the ele-
ment of intent would not have been proven in this
case. . . .
‘‘Evidence with regard to a defendant’s mental capac-
ity is relevant in any case where a specific intent is an
essential element of the crime involved . . . . Such
evidence is admitted not for the purpose of exempting
a defendant from criminal responsibility, but as bearing
upon the question of whether he possessed, at the time
he committed the act, the necessary specific intent, the
proof of which was required to obtain a conviction. . . .
‘‘An instruction on diminished capacity would be war-
ranted, therefore, if sufficient evidence was introduced
to justify [such an instruction]. . . . The state had the
burden of proving the element of intent beyond a rea-
sonable doubt. . . . To warrant consideration of
diminished capacity, however, the defendant must have
presented evidence [that] might have raised a reason-
able doubt as to the existence of the specified mental
state.’’ (Citations omitted; internal quotation marks
omitted.) State v. Jordan, 129 Conn. App. 215, 224–26,
19 A.3d 241, cert. denied, 302 Conn. 910, 23 A.3d
1248 (2011).
Although ‘‘a defendant need [not] present expert testi-
mony to demonstrate the existence of a mental impair-
ment, as lay testimony concerning such impairment is
admissible . . . the evidence of such impairment must
be of such a nature that the jury is entitled to rely upon
it in assessing whether a defendant had the ability to
formulate the requisite intent for the commission of the
crime. We evaluate the evidence to determine whether
the jury reasonably could have drawn a conclusion con-
cerning an inability to form the specific intent. In so
doing, we are mindful that the jury, as fact finder, is
not entitled to engage in speculation or conjecture; it
may only draw reasonable inferences from competent
evidence.’’ (Citation omitted.) State v. Bharrat, 129
Conn. App. 1, 14–15, 20 A.3d 9, cert. denied, 302 Conn.
905, 23 A.3d 1243 (2011).
In the present case, we conclude that the court prop-
erly declined to instruct the jury on diminished capacity.
Reviewing the evidence in the light most favorable to
supporting the defendant’s instructional request dem-
onstrates that the defendant was angry and distraught
at the time he committed the charged crimes and that,
after committing the crimes, he stated a desire to kill
himself and may have attempted to do so. This evidence,
however, reveals nothing about the defendant’s capac-
ity for forming the requisite specific intent at the time
the crimes were committed. The defendant cites no
case that stands for the proposition that being angry
or distraught, or having suicidal ideation, necessarily
prohibits one from forming a specific intent to commit
a crime that would bring the conduct within the purview
of the doctrine of diminished capacity. Because the
defendant failed to present any evidence that he had
an inability to form the requisite specific intent for the
commission of the crimes charged, we conclude that
the court properly declined to instruct on the doctrine
of diminished capacity.
The judgment is affirmed.
In this opinion the other judge concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of risk of injury to a child or family violence, we decline to use the
defendant’s full name or identify the victims or others through whom the
victims’ identities may be ascertained. See General Statutes § 54-86e.
1
General Statutes § 53a-13 (a) provides: ‘‘In any prosecution for an offense,
it shall be an affirmative defense that the defendant, at the time he committed
the proscribed act or acts, lacked substantial capacity, as a result of mental
disease or defect, either to appreciate the wrongfulness of his conduct or
to control his conduct within the requirements of the law.’’
2
Practice Book § 40-19 provides: ‘‘In an appropriate case the judicial
authority may, upon motion of the prosecuting authority, order the defendant
to submit to a psychiatric examination by a psychiatrist designated for this
purpose by the prosecuting authority. No statement made by the defendant
in the course of any examination provided for by Sections 40-17 through
40-19, whether the examination shall be with or without the consent of the
defendant, shall be admitted in evidence against the defendant on the issue
of guilt in any criminal proceeding. A copy of the report of the psychiatric
examination shall be furnished to the defendant within five days after the
receipt thereof by the prosecuting authority.’’
3
On June 13, 2011, in his marital dissolution action, the defendant had
been awarded 25 percent of the marital assets. At the time of the August
20, 2012 inquiry by the court in the present case, the defendant had appealed
from the court’s judgment in the dissolution action. Additionally, the defen-
dant’s wife had instituted a civil assault action against the defendant and
had been granted a prejudgment remedy of $4.1 million.
4
On April 23, 2013, pursuant to General Statutes § 51-297 (g) and Practice
Book § 37-6, the defendant also appealed to the Superior Court the decision
of the public defender’s office that he did not qualify financially for the
services of a public defender because he was not indigent.
5
In total, the defendant filed five interlocutory appeals in this case, all
of which were dismissed by this court: (1) AC 36007, filed on August 26,
2013, dismissed November 20, 2013, cert. denied, 311 Conn. 907, 83 A.3d
603 (2014); (2) AC 36767, filed on May 5, 2014, dismissed May 21, 2014, cert.
dismissed, 312 Conn. 916, 93 A.3d 598 (2014); (3) AC 36769, filed on May
5, 2014, dismissed May 21, 2014, cert. dismissed, 312 Conn. 916, 93 A.3d 598(2014); (4) AC 36918, filed on July 1, 2014, dismissed July 23, 2014, cert.
denied, 313 Conn. 901, 99 A.3d 634 (2014); (5) AC 36977, filed on July
28, 2014, dismissed August 20, 2014, cert. denied, 313 Conn. 902, 99 A.3d
634 (2014).
6
The court, at that time, wanted to hear the defendant’s appeal from the
denial of services by the office of the public defender. See footnote 4 of
this opinion. The defendant, however, refused to proceed at that time citing,
as his reason, his right to appeal from the court’s termination of the appellate
stay within ten days of the court’s ruling. See Practice Book § 61-14. The
defendant did appeal from the trial court’s termination of the stay in AC
36007, which appeal we dismissed, and the Supreme Court denied the defen-
dant’s petition for certification to appeal on January 8, 2014. See State v.
J.M.F., 311 Conn. 907, 83 A.3d 603 (2014).
7
We will discuss this decision in more detail in part VI of this opinion.
8
Practice Book § 40-5 provides in relevant part: ‘‘If a party fails to comply
with disclosure as required under these rules, the opposing party may move
the judicial authority for an appropriate order. The judicial authority hearing
such a motion may enter such orders and time limitations as it deems
appropriate, including, without limitation, one or more of the following:
‘‘(1) Requiring the noncomplying party to comply . . .
‘‘(4) Prohibiting the noncomplying party from introducing specified evi-
dence . . .
‘‘(7) Imposing appropriate sanctions on the counsel or party, or both,
responsible for the noncompliance; or
‘‘(8) Entering such other order as it deems proper.’’
9
Due to the defendant having filed two of his interlocutory appeals in
this case, jury selection did not commence on May 27, 2014, but was delayed
until June 17, 2014.
10
Because the defendant does not provide a separate analysis of a violation
of the Connecticut constitution, we confine our analysis to the defendant’s
claims under the federal constitution. See, e.g., State v. Roger B., 297 Conn.
607, 611 n.7, 616 n.13, 999 A.2d 752 (2010).
11
The record demonstrates that Moynahan filed motions to withdraw on
July 30, 2012, and October 1, 2012, and that Riccio filed motions to withdraw
on August 3, 2012, and October 11, 2012. Riccio and Moynahan brought the
motions on the basis of their claimed financial hardship due to the defen-
dant’s nonpayment. The court denied those motions.
12
Practice Book § 44-3 provides: ‘‘A defendant shall be permitted to waive
the right to counsel and shall be permitted to represent himself or herself
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 the right to the assistance of counsel,
including the right to the assignment of counsel when so entitled;
‘‘(2) Possesses the intelligence and capacity to appreciate the conse-
quences of the decision to represent oneself;
‘‘(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-repre-
sentation.’’
13
The defendant does not cite any specific portion of the June 18, 2014
hearing in the body of his brief, but cites in a footnote, as further proof of
the court’s obligation to conduct a competency hearing or order an evalua-
tion, the following regarding that hearing: ‘‘[The defendant] stated, ‘[I]t would
be extremely psychologically taxing’ to sit through trial and that he could
not ‘offer any assistance to [his] legal counsels.’ . . . He questioned whether
he could ‘competently endure trial,’ and he did not want to ‘end up committed
again.’ . . . The state argued that he fulfilled the ‘very low standard of
competency.’ . . . The court dismissed [the defendant’s] concerns as ‘stres-
sors for everybody involved at this stage of the proceedings.’ ’’ (Citations
omitted.)
14
There is a distinction between competency to stand trial and competency
to represent one’s self, and the two are treated differently under our law.
In Indiana v. Edwards, 554 U.S. 164, 177–78, 128 S. Ct. 2379, 171 L. Ed. 2d
345 (2008), ‘‘the United States Supreme Court clarified that individual states
may adopt standards for determining whether a defendant is competent to
represent himself that are more demanding than the standard used for
determining whether a defendant is competent to stand trial. . . . Accord-
ingly, although a more stringent standard was not constitutionally mandated,
this court elected to adopt such a standard . . . . Under this standard,
when a trial court is presented with a mentally ill or mentally incapacitated
defendant who has been found competent to stand trial . . . a defendant’s
competency to represent himself would depend on his ability to carry out
the basic tasks needed to present his own defense without the help of
counsel . . . notwithstanding any mental incapacity or impairment serious
enough to call that ability into question.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Connor, 321 Conn. 350, 356–57, 138 A.3d
265 (2016).
15
The appeal in AC 36918 was dismissed on July 23, 2014, and the defendant
then filed a petition for certification to appeal from the dismissal. The
Supreme Court denied the petition on September 9, 2014. See footnote 5
of this opinion.
16
The defendant does not address Curcio’s first prong specifically. We
note, however, that he does not meet its requirements either. Indeed, the
court’s decision did not terminate any proceeding separate and distinct from
the defendant’s criminal case; rather, it was a step along the way to the
determination of whether the defendant was guilty of the charges against
him.
17
The defendant did not specify any particular attorney.