State v. Connor

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STATE OF CONNECTICUT v. JEFFREY T. CONNOR
(AC 34970)
Bear, Sheldon and Schaller, Js.*
Argued March 3—officially released September 16, 2014
(Appeal from Superior Court, judicial district of
Hartford, Espinosa, J. [motion to proceed by self-
representation; judgment]; Schuman, J. [remand
hearing].)
Mary Boehlert, assigned counsel, for the appellant
(defendant).
Matthew A. Weiner, deputy assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Anne Mahoney and Denise B. Smoker,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
SCHALLER, J. The principal issue in this appeal is
whether the trial court, on remand from our Supreme
Court, properly determined that the defendant, Jeffrey
T. Connor, was competent to represent himself at his
criminal trial despite suffering from dementia, psycho-
sis, and residual symptoms from a stroke he had suf-
fered several years before the trial. In April, 2006,
following a trial in which the defendant represented
himself, a jury found him guilty of several crimes inci-
dent to the abduction of his former wife. The trial court,
Espinosa, J., then rendered a judgment of conviction
and sentenced the defendant to a term of thirteen years
imprisonment. The defendant appealed from the judg-
ment of conviction directly to our Supreme Court.1 State
v. Connor, 292 Conn. 483, 973 A.2d 627 (2009). During
the pendency of the defendant’s appeal, in Indiana v.
Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d
345 (2008), the Supreme Court of the United States held
that the states are free to adopt a higher standard of
competency for defendants who, although competent
to stand trial with counsel, may not be competent to
conduct trial proceedings without counsel. Our
Supreme Court, in its decision, elected to adopt such
a higher standard. In addition, the court remanded the
case to the trial court, Espinosa, J., to determine
whether the defendant was competent to represent him-
self at trial under the higher standard. Judge Espinosa,
however, did not conduct the remand proceedings.
Rather, another judge, Schuman, J., conducted the
remand proceedings in her stead. The court, Schuman,
J., determined that the defendant was competent to
represent himself under the higher standard and ren-
dered judgment accordingly. The defendant appeals
from the judgment of the trial court on remand. He
claims that the court improperly determined that he
was competent to represent himself under the higher
standard of competency adopted by our Supreme Court
in accordance with Edwards. We reverse the judgment
of the trial court and remand the case with direction
to grant the defendant a new trial.
The relevant factual and procedural background is
as follows. In 1997, the defendant abducted his former
wife.2 In connection with this abduction, the state
charged the defendant with kidnapping in the first
degree, robbery in the third degree, robbery involving
an occupied motor vehicle, larceny in the third degree,
and stalking in the first degree. It was not until 2002,
however, that the defendant was arrested on these
charges. Prior to his arrest, the defendant had suffered
a stroke that confined him to a wheelchair. State v.
Connor, supra, 292 Conn. 490 n.3.
Following his arrest, in pretrial proceedings spanning
a period of two and one-half years, the court attempted
to ascertain the defendant’s competency ‘‘both to stand
trial—attempts that were complicated by the defen-
dant’s refusal to cooperate with court evaluation
teams—and to discharge his court-appointed counsel
and to represent himself.’’ Id., 489. These pretrial pro-
ceedings concluded with the court finding that the
defendant had been malingering and that he, in fact,
was competent to stand trial. Id., 499.
Thereafter, in 2006, the defendant’s criminal trial
commenced with Espinosa, J., presiding. At the outset
of the trial, the defendant moved to discharge his
appointed counsel and requested permission to repre-
sent himself. In the midst of the colloquy3 that followed,
the court stated to the defendant: ‘‘[If] you represent
yourself, you’re not going to walk out of here free, I
can tell you that. Because you are not capable, you
think you are, you think you know what you’re doing,
but you’re not.’’ The defendant nevertheless insisted
that he be permitted to represent himself. The court
subsequently granted the defendant’s request to repre-
sent himself, appointed standby counsel, and the case
proceeded to trial.
At the conclusion of the trial, in which ‘‘[t]he defen-
dant encountered difficulties in representing himself at
various stages’’ of the trial proceedings; State v. Connor,
supra, 292 Conn. 503; the jury found him guilty of kid-
napping in the first degree, robbery in the third degree,
robbery involving an occupied motor vehicle, and lar-
ceny in the third degree.4 Id., 504. The court rendered
judgment in accordance with the jury’s verdict and sen-
tenced the defendant to thirteen years imprisonment.
Id., 505.
In the defendant’s appeal from his judgment of con-
viction, our Supreme Court elected ‘‘to adopt for men-
tally ill or mentally incapacitated defendants who wish
to represent themselves at trial a competency standard
that differs from the standard for determining whether
such a defendant is competent to stand trial.’’ Id., 517.
In doing so, the court recognized that a mentally ill or
mentally incapacitated defendant found competent to
stand trial with the assistance of counsel is not neces-
sarily competent to represent himself at that trial. Id.,
518. Accordingly, on the basis of Edwards and our
Supreme Court’s supervisory authority over the admin-
istration of justice, the court held that ‘‘upon a finding
that a mentally ill or mentally incapacitated defendant
is competent to stand trial and to waive his right to
counsel at that trial, the trial court must make another
determination, that is, whether the defendant also is
competent to conduct the trial proceedings without
counsel.’’ Id., 518–19.
Our Supreme Court recognized, however, that
‘‘[b]ecause Edwards had not been decided prior to the
conclusion of the [defendant’s trial], Judge Espinosa
had no alternative, in light of . . . [then controlling
precedent], but to permit the defendant to represent
himself once it was determined that he was competent
to stand trial. We therefore do not know whether Judge
Espinosa would have granted the defendant’s request
to represent himself if she had had the authority to
deny the request in accordance with Edwards and our
holding in the present case. Consequently, the case
must be remanded for a determination by the court,
Espinosa, J., as to whether the defendant then was
competent, notwithstanding any mental disability, to
conduct the trial proceedings by himself.’’5 (Citation
omitted; footnote omitted.) Id., 528. Because she pre-
sided over the defendant’s trial, our Supreme Court
emphasized that Judge Espinosa was ‘‘best able to make
[such a] fine-tuned mental capacity [decision], tailored
to the individualized circumstances of a particular
defendant . . . .’’ (Citation omitted; internal quotation
marks omitted.) Id., 529. If Judge Espinosa were to
determine that she would have denied the defendant’s
request to represent himself due to his mental illness
or incapacity, she was to grant the defendant a new
trial; if not, the judgment of conviction was affirmed.
Id., 533. On July 14, 2009, the date Connor was released,
the case was remanded to the court, Espinosa, J., to
make such a determination. See id.Judge Espinosa held two hearings on remand but,
for reasons that were not made part of the record, did
not complete the remand proceedings.6 In September,
2011, another judge, Schuman, J., did conduct proceed-
ings pursuant to the remand. Although the record does
not reflect the circumstances or reasons for this action,
the court, Schuman, J., stated in its memorandum of
decision that ‘‘Judge Espinosa . . . did not complete
work on the remanded issue . . . . [The court]
assumed responsibility for the case in September,
2011.’’ The court also stated in its decision that it had
‘‘obtained an affidavit from Judge Espinosa concerning
her recollection of the proceedings . . . .’’7 The court
conducted two hearings pertaining to the remand, the
first on February 22, 2012, and the second on May
25, 2012.
In the first hearing held by the court, Schuman, J.,
on February 22, 2012, the state immediately moved for
the court to admit Judge Espinosa’s affidavit either as
a court exhibit or as a state’s exhibit. At that time,
however, the defendant was not represented by coun-
sel, was unresponsive to inquiries from the court, and
his standby counsel had indicated that ‘‘there are some
concerns both with respect to the medications [the
defendant] is on and . . . further stroke or stroke-like
symptoms, which have caused his condition to further
deteriorate.’’ The court did not rule at that point on
the state’s motion to admit the affidavit. Although the
affidavit ultimately was marked as a court exhibit, the
record does not reveal when that occurred. At the time
of the state’s motion, however, the court did indicate
that ‘‘the question here is . . . was [the defendant]
capable of representing himself at the trial? That’s the
ultimate question, and I think that I can arrive at an
answer to that question based on my reading of the
transcript, my consideration of Judge Espinosa’s affi-
davit, and essentially oral argument from the parties
. . . but just . . . based on the affidavit and the tran-
script.’’8 (Emphasis altered.)
After the first hearing, the court appointed counsel
for the defendant. Following several continuances, the
court conducted a second hearing on May 25, 2012, at
which both parties conceded that the evidence before
the court consisted of the trial transcripts and Judge
Espinosa’s affidavit. Defense counsel, however, moved
to admit the defendant’s Department of Correction med-
ical records into evidence. The court admitted the
records and indicated that it would consider defense
counsel’s summary of the records from the period con-
temporaneous with the defendant’s trial, as the records
spanned a nearly twenty year period. Defense counsel
summarized the contemporaneous medical records as
follows: ‘‘[B]eginning with a record dated January 18,
2005, [the defendant] is shown as having Axis I mood
disorder, dementia relative to [a] cerebral vascular acci-
dent . . . a stroke. . . . On January 26, 2005, [a clini-
cal social worker] writes, by history, [the defendant’s]
Axis I diagnosis is psychosis [not otherwise specified]
and dementia due to [stroke]. In February, 2005, a [phy-
sician] moved to [involuntarily medicate the defendant],
writing [the defendant’s] Axis I diagnosis . . . . On
February 9, 2005 [a Department of Correction mental
health education] . . . hearing panel approves invol-
untary medication because [the defendant] has been
eating his feces and drinking from the toilet. He is
deemed gravely disabled. . . . On September 30, 2005,
[a physician] moves to [involuntarily medicate the
defendant, the] diagnosis being psychotic [not other-
wise specified]. . . . [The defendant] refused psychiat-
ric medication from October, 2005, until well into 2008.
. . . January, 2006 . . . [the defendant] is nonverbal
without eye contact and ineffective coping. . . . Janu-
ary 8 [2006, the defendant is] in [his] cell, lying on bed,
self-coat blankets and sheets, noted to have not eaten.
[The defendant] refused to talk; vital signs were
checked and listed as ineffective coping method.’’
Following defense counsel’s summary of the defen-
dant’s medical records, the court heard oral argument
‘‘as to the issue, generally, as to whether the record,
including any exhibits that have been introduced . . .
as part of this remand hearing shows that the defendant
was competent to represent himself at trial.’’ The state
argued that the defendant carried the burden of demon-
strating that he was competent, notwithstanding any
mental incapacity, to represent himself. But the state
also argued that the defendant needed to establish ‘‘that
[his] disability impacted his ability to conduct trial pro-
ceedings’’ without counsel—that he was incompetent.
Defense counsel argued that the defendant’s trial was
‘‘one of the most well attended trials by court staff,
including voir dire. I would attribute that, in essence,
to the NASCAR9 effect. It was a spectacle.’’ (Footnote
added.) When asked by the court what amount of defer-
ence it should give to Judge Espinosa’s affidavit,
defense counsel replied, ‘‘I am under no illusion that
you won’t give deference . . . as I said, I disagree with
it. I disagree with it heartily, but she was the judge and
it was returned to her for her opinion.’’
Thereafter, the court issued its memorandum of deci-
sion. In its decision, the court assessed the defendant’s
competency to represent himself through the evidence
adduced during the remand proceedings: (1) the trial
transcript, (2) the defendant’s medical records, and (3)
Judge Espinosa’s affidavit.
In assessing the trial transcript, the court summarized
the defendant’s performance during voir dire, the state’s
case-in-chief, the defense case-in-chief, and closing
arguments. In doing so, however, the court did not make
any findings of fact. Rather, it set forth a narrative
commentary on the defendant’s performance during
trial.10
With respect to the defendant’s extensive medical
records, the court stated that ‘‘[t]he . . . records
[revealed], both before and after the criminal trial,
health care professionals diagnosed the defendant with
having various psychiatric or psychological diseases or
disorders.’’ The court, however, stated that it was ‘‘not
persuaded’’ by the medical records. In addition, the
court did not make any findings of fact with respect to
the medical records. The court stated: ‘‘None of the
medical examiners [were] present at the defendant’s
2006 trial. Further, while medical examiners are com-
monly in the position of assessing whether a defendant
will be competent to stand trial in the future, the issue
of whether the defendant has competently represented
himself at a trial that has already taken place is different.
The issue of competence to stand trial is difficult for
a trial judge to assess because the latter cannot fully
intrude on the confidential attorney-client relationship
and predict whether the defendant will provide effective
assistance to his attorney. Therefore, medical experts
who can examine the defendant and make professional
predictions are particularly helpful. In contrast, the
question of whether the defendant has adequately repre-
sented himself is primarily a legal issue, not unlike the
issue of whether a lawyer has provided the effective
assistance of counsel . . . . Because the trial court has
either observed the defendant’s performance in open
court, or at least evaluated it by a review of the tran-
script, medical experts are not necessary. Therefore,
the court does not place any weight on the medical
evidence.’’11 (Citation omitted.)
Finally, with respect to Judge Espinosa’s affidavit,
which did not purport to be a judicial act, that is, an
act that represented an attempt, at that point, to carry
out the remand, the court recited the statements set
forth therein. It emphasized Judge Espinosa’s ‘‘ultimate
conclusion, based on her firsthand observation . . .
that the defendant demonstrated that he was suffi-
ciently capable of carrying out the basic tasks needed
to present his own defense without the assistance of
counsel.’’ (Internal quotation marks omitted.) This ‘‘ulti-
mate conclusion’’ was merely a statement under oath
by an affiant. Indeed, when the affidavit was presented
and marked, Judge Schuman already had ‘‘assumed
responsibility’’ for carrying out the remand. The court,
nevertheless, did not make any findings of fact on the
basis of Judge Espinosa’s affidavit.
The court’s analysis of the evidence, having afforded
no weight to the medical records, was limited to its
assessment of the trial transcript and Judge Espinosa’s
affidavit. The court stated that it was ‘‘troubled by the
fact that a reading of the transcript reveals the defen-
dant to have repeatedly attempted to admit evidence
that was prejudicial to his own defense, to have pre-
sented almost no defense evidence, and to have failed
in his closing argument to present the jury with any
plausible reason to acquit.’’ This troubling fact, how-
ever, was apparently mitigated by the court’s opinion
that ‘‘the most serious charges [did not appear] readily
defensible, and it is not clear what a competent attorney
would have done differently.’’
Notwithstanding the court’s assessment of the tran-
script, it gave ‘‘considerable deference,’’ in its own
words, to Judge Espinosa’s ‘‘critical finding’’ that the
defendant could perform basic tasks needed to repre-
sent himself without counsel. The court stated: ‘‘That
finding establishes that the defendant’s performance
has met the ultimate standard that applies in this con-
text . . . . The court must give considerable deference
to this finding because Judge Espinosa heard the trial.’’12
(Citation omitted.) Thus, the court concluded, ‘‘[b]ased
largely on Judge Espinosa’s firsthand assessment of
the defendant’s performance,’’ that the defendant was
competent to represent himself under Edwards. The
court rendered judgment to the effect that the defendant
was competent to represent himself during trial, Judge
Espinosa properly granted his request to do so and,
therefore, the defendant was not entitled to a new trial.
This appeal followed.13
I
The defendant claims that the court improperly deter-
mined that he was competent to represent himself
under Edwards. We agree with the defendant because
the court did not conduct a meaningful hearing to evalu-
ate retrospectively the competency of the defendant.
Indeed, the indeterminate state of the record precluded
the court from retrospectively determining the defen-
dant’s competency with the degree of reliability that
would have accompanied a competency determination
contemporaneous with the defendant’s trial. Moreover,
because the issue of the defendant’s competency was
raised by our Supreme Court, was not properly resolved
by the court on remand and, for the reasons that follow,
cannot, at this point, be resolved by any other judge
retrospectively, the court’s failure to resolve properly
the question of the defendant’s competency leaves open
the possibility that he represented himself for his entire
trial when he was incompetent to do so. The court’s
error, insofar as it gives rise to such a possibility, may
have effectuated a deprivation of the defendant’s right
to a fair trial. Because the defendant may have been
deprived of his right to a fair trial, the court’s failure
to properly resolve the issue of the defendant’s compe-
tency is an error of constitutional magnitude which the
state, for the same reasons that no other judge can
resolve retrospectively the defendant’s competency to
represent himself at this point, cannot demonstrate was
harmless beyond a reasonable doubt. Accordingly, we
conclude that the court improperly determined that the
defendant was competent to represent himself during
his trial and, under these circumstances, the defendant
is entitled to a new trial.
A
We begin by setting forth the legal principles govern-
ing both the right to self-representation and, as a matter
of state law, the level of competency required to exer-
cise that right. ‘‘A criminal defendant has a fundamental
right to counsel under both the federal and state consti-
tutions. . . . Both the federal constitution and our
state constitution [also] afford a criminal defendant the
right to [forgo] the assistance of counsel and to choose
instead to represent himself or herself at trial.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Connor, supra, 292 Conn. 506–507.
The right to self-representation, however, is not abso-
lute. ‘‘[A] defendant may be competent to stand trial if
represented by counsel yet lack the ability to play the
significantly expanded role required for self-representa-
tion . . . .’’ (Internal quotation marks omitted.) Id.,
525. Edwards permits the states to ‘‘insist upon repre-
sentation by counsel for those competent enough to
stand trial . . . but who still suffer from severe mental
illness to the point where they are not competent to
conduct trial proceedings by themselves.’’14 Indiana v.
Edwards, supra, 554 U.S. 178.
Our Supreme Court, on the basis of Edwards and the
court’s supervisory authority over the administration of
justice, adopted a framework whereby a trial court,
when ‘‘presented with a mentally ill or mentally incapac-
itated defendant who, having been found competent to
stand trial, elects to represent himself . . . must ascer-
tain whether the defendant is, in fact, competent to
conduct the trial proceedings without the assistance of
counsel.’’15 State v. Connor, supra, 292 Conn. 527–28.
The competency of a defendant to represent himself
is measured by 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 ques-
tion.’’16 (Citation omitted; internal quotation marks
omitted.) Id., 530. This standard calls for a fact-intensive
evaluation of a defendant’s capabilities, a task that the
trial judge, more particularly the trial judge who has
observed the defendant in open court, is best equipped
to carry out. See id., 529 (trial judge ‘‘best able to make
[such a] fine-tuned mental capacity [decision], tailored
to the individualized circumstances of a particular
defendant’’ [internal quotation marks omitted]). Under
ordinary circumstances, a trial court will determine
whether a defendant is competent to represent himself
as a matter distinct from that of competency to stand
trial. Such a determination, of course, ordinarily will
be made at a time substantially contemporaneous with
a mentally ill or incapacitated defendant’s request for
self-representation.
In the present case, however, the trial court,
Espinosa, J., did not have the benefit of Edwards. At
the time of the defendant’s trial, his competency to
represent himself was not understood as an issue dis-
tinct from that of his competency to stand trial. Rather,
under then controlling precedent, that the defendant
was competent to stand trial necessarily implied that
he was competent to represent himself. Id., 513 n.19.
As a result, the record before our Supreme Court in
the defendant’s previous appeal did not indicate how
Judge Espinosa would have acted with the benefit of
Edwards. At the same time, however, the record appar-
ently demonstrated to our Supreme Court that the
defendant was mentally ill or incapacitated to a point
where the trial court, if it had the benefit of Edwards,
would have had to resolve his competency to represent
himself before permitting him to do so. Indeed, our
Supreme Court did not remand the case with direction
to determine whether it was necessary to resolve the
defendant’s competency to represent himself. Rather,
the court sua sponte expressed a doubt as to the defen-
dant’s competency and concluded that it was necessary
to resolve it, as is evident from its decision to remand
the case with direction to determine retrospectively
the defendant’s competency to represent himself under
Edwards. Id., 533.
Retrospective competency determinations are more
appropriately referred to as nunc pro tunc competency
determinations. ‘‘Nunc pro tunc, [literally] ‘now for
then,’ refers to a court’s inherent power to enter an
order having retroactive effect. . . . When a matter is
adjudicated nunc pro tunc, it is as if it were done as
of the time that it should have been done.’’ (Citation
omitted; emphasis omitted.) Iouri v. Ashcroft, 464 F.3d
172, 181–82 (2d Cir. 2006), superseded on other grounds,
487 F.3d 76 (2d Cir. 2007), cert. denied sub nom. Iouri
v. Mukasey, 554 U.S. 917, 128 S. Ct. 2986, 171 L. Ed. 2d
885 (2008). Nunc pro tunc competency determinations
function as a substitute for contemporaneous compe-
tency determinations that should have occurred, but for
some reason, did not occur in an underlying proceeding.
See id. (nunc pro tunc hearing takes place of contempo-
raneous hearing as if it had been held at earlier time).
Here, the reason that the court, Espinosa, J., did not
determine the defendant’s competency to represent
himself during trial was because, naturally enough, it
followed existing law stating that a defendant had an
absolute right to represent himself so long as he pre-
viously had been found competent to be tried. Although
Edwards changed that proposition after the fact, our
Supreme Court adopted Edwards during the pendency
of the defendant’s direct appeal and, as a result, the
rule applied retroactively to his case. See Marone v.
Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (judg-
ment not limited by its terms to prospective application
presumed to apply retroactively to pending cases).
Thus, because the court should have but, understand-
ably, failed to determine the defendant’s competency
to represent himself during trial, the error could only
be evaluated for its harmfulness, if at all, through a
nunc pro tunc remedy.
Nunc pro tunc competency determinations, however,
generally are disfavored. See Drope v. Missouri, 420
U.S. 162, 183, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975)
(noting inherent difficulties of nunc pro tunc compe-
tency determinations under most favorable circum-
stances); Pate v. Robinson, 383 U.S. 375, 387, 86 S. Ct.
836, 15 L. Ed. 2d 815 (1966) (same); Dusky v. United
States, 362 U.S. 402, 403, 80 S. Ct. 788, 4 L. Ed. 2d 824(1960) (same); Gold v. Warden, 222 Conn. 312, 317–18,
610 A.2d 1153 (1992) (same); State v. Snook, 210 Conn.
244, 253, 555 A.2d 390 (same), cert. denied, 492 U.S.
924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). This
disfavor stems from the danger that a post hoc recon-
struction of a defendant’s mental state often is unduly
speculative and inherently unreliable.17 United States
v. Makris, 535 F.2d 899, 904 (5th Cir. 1976), cert. denied,
430 U.S. 954, 97 S. Ct. 1598, 51 L. Ed. 2d 803 (1977).
For that reason, nunc pro tunc competency determina-
tions are only permissible ‘‘whenever a court can con-
duct a meaningful hearing to evaluate retrospectively
the competency of the defendant.’’ (Internal quotation
marks omitted.) McGregor v. Gibson, 248 F.3d 946, 962
(10th Cir. 2001). Accordingly, analyzing the propriety
of a nunc pro tunc competency determination involves
examining whether such a determination was the prod-
uct of a meaningful hearing. A hearing is meaningful if
and only if a reliable reconstruction of the defendant’s
mental state at the time of trial is possible.18
In the present case, by way of remanding the matter
to the trial court with direction to render a nunc pro
tunc competency determination, our Supreme Court
implicitly determined that it was permissible for the
trial court to render such a determination at that time.
The implied permissibility of the nunc pro tunc compe-
tency determination, however, was predicated on the
assumption that Judge Espinosa would conduct the
remand proceedings, as was plainly set forth in our
Supreme Court’s mandate19 to the trial court. State v.
Connor, supra, 292 Conn. 525 (‘‘the case must be
remanded to the trial court, Espinosa, J.’’); id., 528(‘‘the case must be remanded for a determination by
the court, Espinosa, J.’’); id., 529 n.31 (‘‘if the defendant
were to persist in refusing to cooperate . . . the trial
court would have no choice but to make a determination
concerning the defendant’s competency to represent
himself at the trial that is limited generally to its recol-
lection of the proceedings and its review of the trial
transcript and arguments of counsel’’ [emphasis
added]).20
Judge Espinosa, however, did not conduct the
remand proceedings. Instead, another judge ‘‘assumed
responsibility’’ for the remand and rendered the judg-
ment that is presently before us.21 Our Supreme Court’s
mandate to the trial court did not account for such a
contingency and, consequently, in order to resolve the
defendant’s claim on appeal that the competency deter-
mination was improper, we must examine the basis of
and grounds of Judge Schuman’s determination that
the defendant was competent to represent himself at
his trial.
B
We must resolve whether the court properly carried
out our Supreme Court’s mandate and determined the
defendant’s competency on the basis of the record
under the unusual circumstances of this case.22 Because
the propriety of the court’s nunc pro tunc competency
determination under these unusual circumstances turns
on the threshold question of whether the court con-
ducted a meaningful hearing, we focus our analysis on
the latter question.
As a general matter, nunc pro tunc competency hear-
ings are meaningful ‘‘where the state of the record,
together with such additional evidence as may be rele-
vant and available, permits an accurate assessment of
the defendant’s condition at the time of the original
. . . proceedings.’’ Reynolds v. Norris, 86 F.3d 796, 802
(8th Cir. 1996). Courts traditionally consider the follow-
ing factors in determining whether a nunc pro tunc
competency hearing was meaningful and, by extension,
whether a determination produced from such a hearing
was proper: ‘‘(1) [T]he passage of time, (2) the availabil-
ity of contemporaneous medical evidence, including
medical records and prior competency determinations,
(3) any statements by the defendant in the trial record,
and (4) the availability of individuals and trial witnesses,
both experts and non-experts, who were in a position
to interact with defendant before and during trial,
including the trial judge, counsel for both the govern-
ment and defendant, and jail officials.’’ (Internal quota-
tion marks omitted.) McGregor v. Gibson, supra, 248
F.3d 962–63; see United States v. Makris, supra, 535
F.2d 904–905 (delineating similar factors); see also
United States v. Giron-Reyes, 234 F.3d 78, 83 (1st Cir.
2000) (remanding with direction to resolve threshold
question of meaningfulness); United States v. Auen, 846
F.2d 872, 878 (2d Cir. 1988) (same). These factors are
not exhaustive and no single factor is determinative.
See Miller v. Dugger, 838 F.2d 1530, 1544 (11th Cir.),
cert. denied, 486 U.S. 1061, 108 S. Ct. 2832, 100 L. Ed.
2d 933 (1988); Johnson v. Commonwealth, 103 S.W.3d
687, 693 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470,
157 L. Ed. 2d 379 (2003). For our purposes, the primary
object of this inquiry is to determine whether the quan-
tity and quality of the evidence would have permitted
the court on remand to reliably reconstruct the defen-
dant’s competency at the time of trial.
With respect to the first factor, the passage of time,
the trial court ‘‘assumed responsibility’’ for the remand
in September, 2011. It conducted two hearings in Febru-
ary, 2012, and May, 2012. In June, 2012, the court ren-
dered judgment and issued a memorandum of decision.
The defendant’s trial occurred in April, 2006. Accord-
ingly, by the time the court conducted hearings and
rendered judgment, approximately six years had passed
from the date of the defendant’s trial.
Turning to the second factor, the availability of con-
temporaneous medical evidence, the defendant’s medi-
cal records from the eighteen month period preceding
his trial were available and admitted into evidence.
These records demonstrated that the defendant had
been diagnosed with dementia and psychosis, and was
experiencing the residual symptoms of the stroke he
had suffered shortly before his arrest. As the court
recognized in its decision, the medical professionals
who presumably diagnosed and treated the defendant
did not testify at trial. Nor were they presented to testify
on remand. Moreover, at least several of the entries in
the records are illegible.23 Even where the entries are
legible, they are written in medical nomenclature. As
a result, it is difficult to discern the legal significance
of the legible notations without an expert witness.
Although it may have been possible to present the testi-
mony of an expert witness to explain the legal signifi-
cance of the legible entries, such testimony would have
been based on a review of the printed record as opposed
to a contemporaneous examination of the defendant.
When coupled with the defendant’s history of refusing
to engage medical professionals during competency
evaluations and the absence of any medical evidence
from the precise time of his trial, such expert testimony
likely would have begged, rather than resolved, the
question of the defendant’s competency. See, e.g., Pate
v. Robinson, supra, 383 U.S. 387 (declining to remand
for nunc pro tunc competency determination where
expert witnesses would have had to testify solely from
information in printed record); Dusky v. United States,
supra, 362 U.S. 403 (declining to remand for nunc pro
tunc competency determination in light of ambiguities
regarding legal significance of psychiatric testimony,
but remanding for new hearing to determine petitioner’s
present competency to stand trial).
Regarding the third factor, the record is replete with
statements from the defendant during trial. The defen-
dant’s statements during trial, however, are of minimal
utility without a proper understanding of his mental
state at that time. Insofar as some of the defendant’s
statements may have indicated that he was competent
to represent himself, those statements also may have
been the product of his mental illness or incapacity.
‘‘Mental illness itself is not a unitary concept. It varies
in degree. It can vary over time. It interferes with an
individual’s functioning at different times in different
ways.’’ Indiana v. Edwards, supra, 554 U.S. 175. The
defendant’s mental state during trial, of course, could
not have been accurately assessed given the state of
the contemporaneous medical evidence that was avail-
able to the court.
Finally, we turn to the fourth factor, the availability
of individuals who interacted with the defendant during
trial. R. Bruce Lorenzen, standby counsel for the defen-
dant during trial, was available during the remand pro-
ceedings. The defendant, however, had ceased all
interaction with Lorenzen well before the commence-
ment of the 2006 trial. Otherwise, Judge Espinosa pro-
vided the court with an affidavit. She did not testify,
however, during the remand proceedings. Generally,
‘‘[w]e do not encourage the calling of a judge as a
witness in subsequent proceedings in a case over which
the judge presided. . . . Where there is a compelling
need for a judge’s testimony as to observed facts in
order that justice be done, however, a judge is a compe-
tent witness and should not be precluded from testi-
fying.’’ (Citation omitted). Gold v. Warden, supra, 222
Conn. 320. Judge Espinosa’s live testimony would have
been necessary insofar as her affidavit set forth what
we can characterize only as conclusory statements
regarding the defendant’s ability to represent himself
during trial: ‘‘The defendant demonstrated the ability
to communicate appropriately and coherently with the
court . . . he demonstrated the ability to address the
jury in an appropriate and coherent manner . . . the
defendant carried out the basic tasks needed to present
his own defense in a manner similar to other self-repre-
sented defendants who appeared before me . . . he
demonstrated that he was sufficiently capable of car-
rying out the basic tasks needed to present his own
defense without the assistance of counsel.’’ These state-
ments do not constitute ‘‘observed facts’’ and cannot
be appropriately labeled as such. Rather, the statements
in Judge Espinosa’s affidavit collectively constitute an
opinion as to the ultimate issue of the defendant’s com-
petency, couched in the language of Edwards.24 In addi-
tion, Judge Espinosa’s affidavit was obtained by the
court under circumstances not appearing on the record
well before the defendant’s medical records were avail-
able as evidence, indicating that her statements were
made without any knowledge of the defendant’s exten-
sive medical records and what they would reveal about
his mental state at the time of trial. Although the obser-
vations of the trial judge undoubtedly are germane to
the issue of the defendant’s competency to represent
himself, Judge Espinosa’s affidavit did not set forth with
particularity any observed facts that would assist the
court in reconstructing the defendant’s competency at
the time of trial. Moreover, insofar as her affidavit indi-
cated that she believed the defendant was capable of
carrying out the basic tasks needed to present his own
defense without counsel, the trial transcript offers a
conflicting statement: ‘‘[If] you represent yourself,
you’re not going to walk out of here free, I can tell you
that. Because you are not capable, you think you are,
you think you know what you’re doing, but you’re not.’’
(Emphasis added.)
In balancing these factors, we are mindful that the
passage of time alone does not necessarily render a
nunc pro tunc competency determination improper.
McGregor v. Gibson, supra, 946 F.3d 963. The ‘‘reliable
reconstruction of [a defendant’s] mental status [at the
time of trial] depends less on time than on the state
of the record. Especially where medical information
substantially contemporaneous to trial is available, the
chances for an accurate assessment increase.’’ (Internal
quotation marks omitted.) State v. McRae, 163 N.C. App.
359, 373, 594 S.E.2d 71 (Timmons-Goodson, J., concur-
ring in the result), appeal dismissed and review denied,
358 N.C. 548, 599 S.E.2d 911 (2004). But where, as here,
the record consists of medical records of uncertain
legal significance, a pre-Edwards trial transcript, some
statements from the defendant suggesting he may not
have been competent under Edwards and others sug-
gesting the contrary, and an affidavit from the trial judge
that does not contain any factual observations, but con-
tains opinions that conflict with statements made dur-
ing trial, the passage of time functions to exacerbate the
difficulty of evaluating retrospectively the defendant’s
competency. In addition, ‘‘[t]rial judges . . . try hun-
dreds of different cases involving hundreds of different
criminal defendants each year and thousands of cases
involving thousands of different criminal defendants
over the course of their term. Therefore, recollecting
with certainty the competence of one particular defen-
dant tried several years ago is a monumental task, ripe
with inherent difficulties . . . .’’ Id., 372–73 (Timmons-
Goodson, J., concurring in the result). The task borders
on the impossible when a judge is asked to reconstruct
the mental state of a defendant at a trial that occurred
six years earlier, over which the judge did not preside,
under a standard that did not yet exist, and pursuant
to a remand directed to the trial judge.
Although we recognize that the court, Schuman, J.,
attempted to carry out the remand once it ‘‘assumed
responsibility’’ for the case for reasons not appearing
in the record, we conclude that it did not properly
determine that the defendant had the competence to
present his own defense without the help of counsel.
Under these circumstances, the court did not conduct
a meaningful hearing and, therefore, its nunc pro tunc
competency determination was a ‘‘wholly inadequate
substitute’’ for a contemporaneous determination. Sil-
verstein v. Henderson, 706 F.2d 361, 369 (2d Cir.), cert.
denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171(1983).
II
This leaves us to determine the appropriate remedy.
Although we conclude that the court did not properly
determine whether the defendant was competent to
represent himself under these circumstances, the issue
of the defendant’s competency remains unresolved. Our
Supreme Court originally raised the issue of the defen-
dant’s competency in his previous appeal. In doing so,
the court expressed a reasonable doubt as to the defen-
dant’s competency, triggering the responsibility of the
trial court to resolve his competency under Edwards. In
light of the unorthodox sequence of events on remand,
however, the trial court could not carry out that respon-
sibility. Notwithstanding the court’s failure in that
regard, it remains clear that the defendant is entitled
to a procedurally adequate competency determination.
Such a determination, however, is no longer possible.
Not only have eight years passed since the defendant’s
trial, but our analysis in the present case has revealed
that any inquiry into the defendant’s competency now
would be unduly and impermissibly speculative.25 Thus,
insofar as the court’s failure to determine whether the
defendant was competent to represent himself consti-
tuted error, we conclude that such error is no longer
amenable to a nunc pro tunc remedy.26 See Drope v.
Missouri, supra, 420 U.S. 182–83 (concluding nunc pro
tunc competency hearing would not adequately protect
petitioner’s due process rights); see also Silverstein v.
Henderson, supra, 706 F.2d 369 (declining to remand
for retrospective competency determination that would
be based on conflicting evidence, cold record, and recol-
lection of individuals who interacted with petitioner six
years prior). As a result, it is no longer possible to
resolve the reasonable doubt, raised by our Supreme
Court, as to the defendant’s competency to represent
himself during trial.27
What remains for our consideration is the court’s
error in failing to resolve the doubt as to the defendant’s
competency.28 Because this error cannot be remedied
through a nunc pro tunc competency determination,
the appropriate relief, if any, turns on an assessment
of the error itself. This is so because it is the nature of
the error that controls which party would carry the
burden under a harmful error analysis.29 Under these
circumstances, the party carrying this burden, in this
case, the state, cannot prevail.
The error we must address lies in the court’s failure
to determine the defendant’s competency to represent
himself under Edwards once a reasonable doubt as to
the defendant’s competency was raised. This error has
left such doubt wholly intact, which, in turn, has left
open the ‘‘ ‘real possibility’ ’’ that the defendant repre-
sented himself for his entire trial when he was incompe-
tent to do so. State v. Jackson, 283 Conn. 111, 119 n.1,
925 A.2d 1060 (2007). If the defendant, in fact, repre-
sented himself when he was incompetent to do so, he
was plainly deprived of his constitutional right to a fair
trial.30 ‘‘[W]hen a mentally ill or incapacitated defendant
is permitted to represent himself at trial despite his
. . . lack of competence to do so, the reliability of the
adversarial process, and thus the fairness of the trial
itself, inevitably is cast in doubt.’’ State v. Connor, supra,292 Conn. 527; see Indiana v. Edwards, supra, 554 U.S.
176–77 (when defendant’s lack of capacity to represent
himself threatens improper conviction or sentence, self-
representation undercuts most basic of constitution’s
criminal law objectives, providing fair trial). Indeed,
the error does not only undermine the fairness of the
defendant’s trial, but the appearance of fairness upon
which the public confidence in our adversarial system
relies. See Indiana v. Edwards, supra, 177 (‘‘proceed-
ings must not only be fair, they must appear fair to all
who observe them’’ [internal quotation marks omitted]).
Accordingly, because the doubt as to the defendant’s
competency to represent himself, once raised, must
have been resolved by the court in order to assure the
defendant received a fair trial, the court’s error in failing
to determine the defendant’s competency implicates
his constitutional right to a fair trial. The error, then,
is of constitutional magnitude. See State v. Jenkins, 271
Conn. 165, 190, 856 A.2d 383 (2004) (‘‘[an error] of
constitutional magnitude may be established even
though there has not been a complete abridgement or
deprivation of the [constitutional] right . . . [and a]
constitutional [error] may result . . . when a constitu-
tional right has been impermissibly burdened or
impaired by virtue of state action that unnecessarily
chills or penalizes the free exercise of the right’’ [inter-
nal quotation marks omitted]); see also Gold v. Warden,
supra, 222 Conn. 320 (noting court’s duty to assure
petitioner fair trial).
The state, of course, ‘‘bears the burden of proving
that [a] constitutional [error] was harmless beyond a
reasonable doubt.’’ State v. Brown, 279 Conn. 493, 511,
903 A.2d 169 (2006). In light of the passage of time
and our analysis of the record in the present case, we
conclude that the state cannot meet its burden of estab-
lishing that the court’s error was harmless beyond a
reasonable doubt. Accordingly, the defendant is entitled
to a new trial.31
The judgment is reversed and the case is remanded
with direction to grant the defendant a new trial.
In this opinion SHELDON, J., concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant appealed from the judgment of conviction directly to our
Supreme Court pursuant to General Statutes § 51-199 (b) (3). Our Supreme
Court, however, transferred the defendant’s appeal to this court in order to
consolidate it with another appeal. State v. Connor, 292 Conn. 483, 487 n.2,
973 A.2d 627 (2009). After this court consolidated the two appeals, our
Supreme Court transferred both appeals to itself pursuant to § 51-199 (c)
and Practice Book § 65-1. Id.
2
Our Supreme Court set forth the facts of the underlying criminal case,
as the jury reasonably could have found them, in the defendant’s previous
appeal. See State v. Connor, supra, 292 Conn. 488–90.
3
In the lengthy colloquy that followed his request to represent himself,
the defendant indicated, among other things, that (1) he had been to school,
but did not know where; (2) he did not know where he went to school
because he had suffered a stroke and everything that he had learned was
from the Bible; (3) he did not remember where he lived or where he was
when he had suffered his stroke; (4) he did not have any recollection of
the incident giving rise to the criminal charges against him; (5) despite his
lack of memory, he was able to represent himself ‘‘[b]ecause . . . I can. I
will do with the best I can and through the Bible I swear to—I promise to
God’’; (6) he did not recall what grade in school he had completed, but
knew that he was ‘‘smart,’’ explaining: ‘‘Because I’m reading—on the Bible,
there’s words in there that are like this long and, like, the guy says, the guy
that’s reading it, the Bible, he goes to Bible school, too, and he’s like, I don’t
understand that. I said, it’s not hard to understand, it’s just, you got to read
it’’; (7) his potential term of imprisonment was ‘‘only a number, that’s all it
is . . . a number’’; (8) what would help him to represent himself was ‘‘God’’;
(9) he wanted to remain in his prison garb during trial so the jury would
know that he ‘‘was in jail for the longest time,’’ as his duration of pretrial
confinement was ‘‘going to be part of the case, you know’’; and (10) he
intended on telling the jury ‘‘everything,’’ despite the court’s suggestion that
he would have to confine his questioning of witnesses to relevant issues.
4
The jury found the defendant not guilty of stalking in the first degree.
5
At the time of both the defendant’s trial and oral argument in his previous
appeal to our Supreme Court, a criminal defendant found competent to
stand trial was also competent, as a matter of law, to waive the right to
counsel for any purpose at that trial, including self-representation. State v.
Connor, supra, 292 Conn. 513 n.19.
6
On remand, Judge Espinosa did not make any findings of fact or conclu-
sions of law, or otherwise address the issue of the defendant’s competency
to represent himself during trial. On March 16, 2011, Judge Espinosa was
sworn in as a judge of the Appellate Court. See General Statutes § 51-197c
(f). On March 6, 2013, she was sworn in as an Associate Justice of our
Supreme Court. Because this appeal largely involves matters that occurred
before Justice Espinosa’s appointment to our Supreme Court, and for clarity,
we refer to Justice Espinosa as Judge Espinosa in this opinion.
7
On January 23, 2012, by way of an affidavit filed at the Hartford Superior
Court, Judge Espinosa averred to the following:
‘‘(2) I have personal knowledge of the facts hereinafter set forth.
‘‘(3) In 2006, when I was a Superior Court Judge in the Judicial District
of Hartford, Jeffrey T. Connor appeared before me as a self-represented
defendant in a criminal prosecution, State of Connecticut v. Jeffrey T. Con-
nor, CR XX-XXXXXXX.
‘‘(4) I presided over the defendant’s trial and observed the manner in
which he conducted the trial proceedings.
‘‘(5) The defendant appeared to be engaged in every aspect of the trial pro-
ceedings.
‘‘(6) The defendant demonstrated an understanding of the evidence pre-
sented by the state and what was occurring during each distinct phase of
the trial. Neither the state’s theory of the case nor the evidence presented
was overly complicated. The evidence against the defendant consisted pri-
marily of the testimony of his former wife.
‘‘(7) At times, the defendant made statements concerning irrelevant mat-
ters. It appeared that these statements were a calculated attempt on the
part of the defendant to elicit sympathy and, thus, persuade the court or
the jury to find in his favor.
‘‘(8) Although, at times, the defendant addressed the court concerning
irrelevant matters, during numerous colloquies that transpired during the
course of the trial, the defendant demonstrated the ability to communicate
appropriately and coherently with the court.
‘‘(9) Although the defendant advanced arguments that ultimately did not
persuade the jury to find in his favor, he demonstrated the ability to address
the jury in an appropriate and coherent manner.
‘‘(10) At no point during the proceedings did the defendant exhibit the
effects of a mental incapacity or impairment such that I questioned whether
he possessed the mental ability to conduct the trial proceedings without
the assistance of counsel. Had I believed, at any point during the proceedings,
that an injustice was being done as a result of the defendant’s self-representa-
tion, I would have taken appropriate action to protect the defendant’s rights,
including, but not limited to, ordering the defendant to undergo an evaluation
of his mental ability.
‘‘(11) In my experience, the defendant carried out the basic tasks needed
to present his own defense in a manner similar to other self-represented
defendants who appeared before me.
‘‘(12) Although the defendant did not conduct the trial proceedings with
the technical skill or knowledge of an attorney, he demonstrated that he
was sufficiently capable of carrying out the basic tasks needed to present
his own defense without the assistance of counsel.’’
8
Notwithstanding the fact that the defendant was representing himself
in a proceeding held for the specific purpose of resolving the precise question
of whether he was competent to do so at his trial, the court sought and
admitted Judge Espinosa’s affidavit into evidence at a point when the defen-
dant was not represented by counsel. Even if we ignore the obvious due
process concerns that arise when a defendant represents himself in a pro-
ceeding under circumstances calling into question his very competence to
do so, as well as the unknown provenance of the affidavit itself, the court
did not provide a meaningful opportunity for the defendant or defense
counsel, once the latter was appointed, to object to the affidavit or test it
through cross-examination, ‘‘the greatest legal engine ever invented for the
discovery of truth . . . .’’ (Internal quotation marks omitted.) O’Shea v.
Mignone, 35 Conn. App. 828, 838, 647 A.2d 37, cert. denied, 231 Conn. 938,
651 A.2d 263 (1994). Having never been subject to meaningful adversarial
testing, the affidavit was, at best, unsubstantiated and, at worst, unreliable.
See Tyler v. Swenson, 427 F.2d 412, 415 (8th Cir. 1970) (‘‘A member of the
judiciary has no peculiar competence in factual recollection of unrecorded
events. . . . [T]he many cases a trial judge participates in may well cloud
vivid recollection of detail in a specific case. . . . A [defendant] should be
permitted to test a judge’s recollection, as a witness presenting factual
material testimony, as he would any other witness upon cross-examina-
tion.’’); see also footnotes 12 and 26 of this opinion.
9
‘‘The National Association for Stock Car Auto Racing, Inc., is a corpora-
tion engaged in the operation of stock car races.’’ LeBlanc v. New England
Raceway, LLC, 116 Conn. App. 267, 269 n.1, 976 A.2d 750 (2009).
10
Beginning with voir dire, the court stated that ‘‘the defendant’s questions
to panelists did not seem to further his strategic interests or have any
apparent relevance to the case. At times, the questions were attempts at
making philosophical statements that jurors simply did not understand.’’
With respect to the defendant’s performance during the state’s case-in-
chief, the court mentioned that his cross-examination of the complaining
witness, his former wife, was ‘‘short, but adequate.’’ The defendant’s cross-
examination of two other state’s witnesses, however, was characterized by
the court as prejudicial to his case.
The court characterized the defense case-in-chief as commencing with a
‘‘long, rambling discussion’’ from the defendant. The court, however, focused
its narrative of the defense case on the defendant’s direct examination of
his only witness, his brother. It indicated that the defendant continually
attempted to elicit testimony from his brother regarding events that occurred
years after the crime took place. The court also indicated that the defendant’s
line of questioning prompted Judge Espinosa to excuse the jury and inform
the defendant ‘‘of several questions that he could permissibly ask the wit-
ness.’’ Thereafter, the court noted the defendant’s attempt to admit into
evidence a document containing incriminating information, prompting Judge
Espinosa to inform him that such information is something he did not want
the jury to know. The court also explained how, after the defendant rested
his case, the state had to suggest to him that he should move for a judgment
of acquittal. The court stated that, although the defendant acquiesced, he
‘‘initially bypassed his opportunities to make arguments in support of it.’’
Finally, with respect to closing arguments, the court characterized the
defendant’s summation as beginning with a ‘‘reasonably appropriate discus-
sion of the evidence.’’ The court noted, however, that he ‘‘began to mix his
discussion of the evidence with rambling comments about a stroke he had—
a matter the court had expressly forbid him from mentioning,’’ a report not
made a full exhibit, his history, his incarceration, misstatements of law, and
criticism of Judge Espinosa for questioning a witness.
11
Contrary to the court’s position, the issue was not whether the defendant
‘‘adequately represented himself’’ at trial. Rather, the issue was whether the
trial court in the underlying criminal case would have permitted the defen-
dant to represent himself if it had had the benefit of Edwards. To determine
what Judge Espinosa would have done with the benefit of Edwards during
trial, the court on remand first had to determine the threshold question of
whether the defendant was, in fact, competent to represent himself under
Edwards. Indeed, unless the court was of the opinion that Judge Espinosa
would have permitted a defendant incompetent under Edwards to represent
himself, the question of what she would have done with the benefit of
Edwards necessarily encompassed consideration of the defendant’s compe-
tency under Edwards and, by extension, any medical evidence that informed
that consideration. See State v. Connor, supra, 292 Conn. 529 (directing
court on remand to ‘‘consider any and all relevant information, including
. . . the extent to which the defendant’s competence to represent himself
may have been affected by mental illness, by the stroke that he had suffered,
and by any memory problems that he may have experienced as a result of
that stroke’’). Simply put, the court on remand had to consider and analyze
the defendant’s medical records in order to resolve properly the question
posed both by Edwards and our Supreme Court’s remand. See part I A of
this opinion.
Accordingly, we conclude that the court improperly refused to assign any
weight to the defendant’s medical records. It is of no import that the records
were not available at the time of the defendant’s trial. As one court has put
it: ‘‘Post-trial medical evidence to assist in deciding if a defendant was
sufficiently competent to represent himself at trial is not significantly differ-
ent than permitting a medical expert to testify regarding the defendant’s
sanity at the time of commission of a criminal act. . . . In both circum-
stances, there is an element of Monday morning quarterbacking. And we
are not so much concerned about the unfairness to the trial judge who may
be reversed on information that was unavailable to him or her, but rather
whether the defendant received a fair trial.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) State v. McCullah, Docket No.
12-0081, 2013 WL 530943, *2 (Iowa App. February 13, 2013) (decision without
published opinion, 829 N.W.2d 191 [Iowa App. 2013]).
12
Because the affidavit did not represent a judicial act, the statements
therein did not constitute ‘‘findings’’ but were merely statements under oath
by an affiant. See Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 288, 116
L. Ed. 2d 9 (1991) (nonjudicial acts are those acts not taken in judge’s
judicial capacity).
13
Our Supreme Court originally retained jurisdiction for ‘‘purposes of any
appeal from the decision of the trial court either granting or denying the
defendant a new trial in the criminal case.’’ State v. Connor, supra, 292
Conn. 533 n.34. Following oral argument in the present appeal, by order
dated March 6, 2014, our Supreme Court ceded jurisdiction to this court.
‘‘Insofar as [the Supreme Court] expressed its intent to retain jurisdiction
over any appeal taken from the judgment rendered on remand . . . it hereby
cedes jurisdiction to the Appellate Court. The Appellate Court rightly heard,
and should decide, the defendant’s appeal from the judgment rendered on
remand.’’ (Citations omitted.)
14
In effect, Edwards permits the states, as a matter of federal law, to
place reasonable state law limitations on the exercise of a federal constitu-
tional right. See State v. Connor, supra, 292 Conn. 518 (noting Edwards does
not prevent state from permitting mentally ill defendant from representing
himself if competent to stand trial; rather, Edwards held that sixth and
fourteenth amendments to federal constitution do not require state to permit
mentally ill defendant to represent himself); see also State v. McNeil, 405
N.J. Super. 39, 52, 963 A.2d 358 (App. Div.) (same), cert. denied, 199 N.J.
130, 970 A.2d 1047 (1999). ‘‘We note that the permissive nature of Edwards
apparently creates an anomalous situation in which state courts can deter-
mine the level of competency necessary for the exercise of federal constitu-
tional rights such that an individual’s right to self-representation under the
federal constitution may vary from state to state.’’ State v. Connor, supra,518 n.22.
15
We pause to recognize that, although our Supreme Court plainly elected
to adopt a higher standard for measuring a mentally ill or incapacitated
defendant’s competency to represent himself than for measuring such a
defendant’s competency to stand trial, it did not indicate whether the higher
standard functions to bar such a defendant from representing himself at
trial. Stated differently, our Supreme Court may have stopped short of
holding that a trial judge may never permit a mentally ill or incapacitated
defendant found incompetent under the higher standard from representing
himself at trial. On the other hand, the court indicated that permitting a
defendant to represent himself when he is incompetent to do so may deprive
him of a fair trial. See State v. Connor, supra, 292 Conn. 527 (‘‘when a
mentally ill or incapacitated defendant is permitted to represent himself at
trial despite his or her lack of competence to do so, the reliability of the
adversarial process, and thus the fairness of the trial itself, inevitably is cast
in doubt’’).
16
Our Supreme Court did not ‘‘articulate a precise standard for determining
whether a mentally ill or incapacitated defendant . . . found competent to
stand trial also is competent to represent himself at trial. For present pur-
poses, it suffices to say that the trial court should consider all pertinent
factors in determining whether the defendant has sufficient mental capacity
to discharge the essential functions necessary to conduct his own defense,
including the defendant’s ability to relate to the court or the jury in a coherent
manner.’’ State v. Connor, supra, 292 Conn. 530 n.32.
17
Although this disfavor has been articulated almost exclusively where
nunc pro tunc determinations concern a defendant’s competency to stand
trial, several decisions have recognized the same disfavor in the context of
a defendant’s competency to represent himself. See, e.g., United States v.
Arenburg, 605 F.3d 164, 171–72 (2d Cir. 2010) (noting disfavor of nunc
pro tunc determination in context of competency for self-representation);
Edwards v. State, 902 N.E.2d 821, 825 (Ind. 2009) (same); State v. Klessig,
211 Wis. 2d 194, 213, 222, 564 N.W.2d 716 (1997) (same). Indeed, such
disfavor is not rooted in the nature of the error giving rise to a potential
nunc pro tunc competency inquiry, but the ‘‘inherent difficulties’’ of proj-
ecting back and reliably reconstructing a defendant’s mental state—that is,
the difficulty of the inquiry itself. Drope v. Missouri, supra, 420 U.S. 183; see
Commonwealth v. Santiago, 579 Pa. 46, 65, 855 A.2d 682 (2004) (explaining
United States Supreme Court decisions concerning nunc pro tunc compe-
tency inquiries to reflect admonition that retrospectively determining compe-
tency is inherently difficult, in some cases insurmountably difficult, but not
per se prohibited).
18
See, e.g., United States v. Arenburg, 605 F.3d 164, 171–72 (2d Cir. 2010)
(remanding for nunc pro tunc competency determination if trial court deter-
mines meaningful hearing can be held); United States v. Jones, 336 F.3d
245, 260 (3d Cir. 2003) (same); United States v. Giron-Reyes, 234 F.3d 78,
83 (1st Cir. 2000) (same); United States v. Mason, 52 F.3d 1286, 1293 (4th
Cir. 1995) (same); United States v. Auen, 846 F.2d 872, 878 (2d Cir. 1988)
(same); see also McMurtrey v. Ryan, 539 F.3d 1112, 1131–32 (9th Cir. 2008)
(setting forth framework for analyzing meaningfulness of nunc pro tunc
competency hearing); United States v. Savage, 505 F.3d 754, 758 (7th Cir.
2007) (stating validity of nunc pro tunc competency determinations tied to
permissibility); Maynard v. Boone, 468 F.3d 665, 674–75 (10th Cir. 2006)
(affirming nunc pro tunc competency determination in part because permis-
sible), cert. denied, 549 U.S. 1285, 127 S. Ct. 1819, 167 L. Ed. 2d 328 (2007);
Watts v. Singletary, 87 F.3d 1282, 1286–87 n.6 (11th Cir. 1996) (remanding
for nunc pro tunc competency determination if permissible), cert. denied,
520 U.S. 1267, 117 S. Ct. 2440, 138 L. Ed. 2d 200 (1997); Reynolds v. Norris, 86
F.3d 796, 802–803 (8th Cir. 1996) (remanding for nunc pro tunc competency
determination); Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995)
(explaining nunc pro tunc competency determination permissible if based
on observations and evidence contemporaneous to trial) (modified on other
grounds by Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457, 133 L. Ed.
2d 383 [1995]), cert. denied, 516 U.S. 1096, 116 S. Ct. 822, 133 L. Ed. 2d 765(1996); Wheat v. Thigpen, 793 F.2d 621, 630–32 (5th Cir. 1986) (affirming
lower court ruling that nunc pro tunc competency determination permissi-
ble), cert. denied, 480 U.S. 930, 107 S. Ct. 1566, 94 L. Ed. 2d 759 (1987).
19
‘‘A mandate is the official notice of action of the appellate court, directed
to the court below, advising that court of the action taken by the appellate
court, and directing the lower court to have the appellate court’s judgment
duly recognized, obeyed, and executed.’’ (Internal quotation marks omitted.)
Hurley v. Heart Physicians, P.C., 298 Conn. 371, 381 n.9, 3 A.3d 892 (2010).
20
Our Supreme Court further directed the court on remand to ‘‘consider
any and all relevant information, including, but not limited to, the extent
to which the defendant’s competence to represent himself may have been
affected by mental illness, by the stroke that he had suffered, and by any
memory problems that he may have experienced as a result of that stroke.
The court also should evaluate the extent to which the defendant may
have been feigning mental problems. Because of the defendant’s refusal to
cooperate with the various evaluation teams that had been assembled to
assess his competency, it is difficult to discern whether the defendant suf-
fered from a mental illness that, alone or in combination with his stroke,
may have rendered him incompetent to represent himself. Accordingly, the
trial court may seek to have the defendant examined again if it appears that
such an examination would be helpful in resolving the issue presented on
remand.’’ (Emphasis added.) State v. Connor, supra, 292 Conn. 529.
21
We recognize that our Supreme Court, in addition to a nunc pro tunc
competency determination, envisioned a nunc pro tunc exercise of Judge
Espinosa’s discretion on remand: ‘‘We . . . do not know whether Judge
Espinosa would have granted the defendant’s request to represent himself
if she had had the authority to deny the request in accordance with Edwards
and our holding in the present case.’’ State v. Connor, supra, 292 Conn. 528.
‘‘The . . . case is remanded to the trial court with direction to determine
whether it would have denied the defendant’s request to represent himself
at trial, due to the defendant’s mental illness or mental incapacity, even
though the defendant was deemed to have been competent to stand trial
and to waive the right to counsel. If the court would have denied the
defendant’s request to represent himself at trial, the . . . court shall grant
the defendant a new trial . . . if not, the judgment [of conviction] . . .
is affirmed.’’ Id., 533. As discussed previously, however, this exercise of
discretion was intrinsically linked to whether the defendant was competent
to represent himself under Edwards. See footnote 11 of this opinion.
Judge Schuman, under the circumstances of this case, did not make the
discretionary determination that our Supreme Court sought from Judge
Espinosa. See, e.g., United States v. Garcia, 413 F.3d 201, 231 (2d Cir. 2005)
(Calabresi, J., concurring) (questioning how different human being can say
for sure how another would have exercised discretion with correct under-
standing of law). Because the judges of our Superior Court do not have a
collective consciousness, Judge Schuman’s conclusion as to what Judge
Espinosa would have done in a circumstance that she never contemplated
would not have been an exercise of discretion, but a legal fiction. See id.,
228 (characterizing as ‘‘impossible’’ attempt of successor judge on remand
to determine what original judge would have done with correct understand-
ing of law and fully developed record). Whether a judge in Judge Schuman’s
position was capable of substituting judicial action for that discretion, how-
ever, is an issue that we need not resolve.
22
Our colleague, who has filed a concurring and dissenting opinion (hereaf-
ter concurrence) ‘‘question[s]’’ our ‘‘failure to discuss whether the remand
instructions could be carried out only by Judge Espinosa or whether another
trial judge could perform those instructions.’’ With due respect to the concur-
rence, the defendant challenges the propriety of the judgment before us on
the ground that the court improperly determined that he was competent to
represent himself at his criminal trial. Stated differently, the defendant
challenges what the court did, not who did it. Indeed, neither party has
ever challenged Judge Schuman’s authority to render judgment on remand.
Accordingly, the issue of whether Judge Schuman, another judge, or only
Judge Espinosa could carry out our Supreme Court’s remand is not before us.
23
On May 25, 2012, during the second remand hearing before Judge Schu-
man, the state continually indicated to the court that the medical records
were ‘‘handwritten . . . typical doctor writing’’ and that the prosecutor
could not ‘‘really read [them].’’ ‘‘[I]t’s kind of tough to read the handwriting
. . . . They could have brought the doctor in to explain what these notes
are.’’
24
Notwithstanding the unknown provenance of Judge Espinosa’s affidavit,
we pause to recognize that the court apparently adopted her affidavit as
judicial findings to which it lent ‘‘considerable deference . . . .’’ This was
error. Judge Espinosa’s affidavit does not contain any indication that it was
offered as a substitute for the court’s own independent findings of fact and
legal analysis. Even if it were, the affidavit apparently was executed well
after Judge Schuman ‘‘assumed responsibility’’ for the remand and, therefore,
neither its making nor its filing constituted a judicial act. See footnote 12
of this opinion. As the judge who had undertaken compliance with our
Supreme Court’s mandate by adjudicating a matter in which the predecessor
judge had not rendered any findings of fact or conclusions of law, it was
Judge Schuman’s responsibility to dispose of the case utilizing his own
independent judgment. See, e.g., Stevens v. Hartford Accident & Indemnity
Co., 29 Conn. App. 378, 383, 615 A.2d 507 (1992) (incumbent on successor
judge to exercise independent judgment in completing proceedings by way
of finding facts and applying law to those facts).
25
The concurrence states, ‘‘[w]ith respect to the nunc pro tunc law invoked
by the majority, our Supreme Court did not find in Connor that there was
any bar grounded in the nunc pro tunc doctrine to its mandate to Judge
Espinosa on remand, and that issue was not raised in this appeal. It, there-
fore, is not properly before us. It is both irrelevant to and moot as an
issue in this appeal, and it is unnecessary for this court to address it.’’ We
respectfully disagree.
Assuming, arguendo, that the concurrence is questioning our consider-
ation of nunc pro tunc law in connection with the remedy in this case,
circumstances have changed substantially so that our Supreme Court’s
implicit determination with respect to nunc pro tunc law in 2009, three
years removed from the defendant’s trial and with the assumption that Judge
Espinosa would carry out the remand, is no longer applicable. Indeed, we
are now eight years removed from the defendant’s trial, and our Supreme
Court has specifically ceded jurisdiction to this court for purposes of resolv-
ing the appeal from the judgment rendered on remand. See footnote 13 of
this opinion. As such, it is our independent responsibility to decide this case
on the basis of the present circumstances. Our duty in this regard is not
to interpret our Supreme Court’s intent when it issued the original remand
order, under different circumstances, five years ago, but to evaluate indepen-
dently the present circumstances and determine independently, as our
Supreme Court did in 2009, whether a reliable nunc pro tunc competency
inquiry is feasible, and thus permissible, at this point.
26
Although the concurrence concludes that Judge Espinosa should be
given an opportunity to carry out the remand now, that conclusion is predi-
cated on the notion that she could do so properly and effectively eight years
removed from the defendant’s trial. Even assuming, arguendo, that Judge
Espinosa could, as a practical matter, carry out the remand at this point,
we conclude that, as a matter of law, she could not properly do so.
‘‘A judge shall disqualify . . . herself in any proceeding in which the
judge’s impartiality might reasonably be questioned including, but not limited
to, the following circumstances . . . (5) The judge . . . (C) was a material
witness concerning the matter. . . .’’ (Emphasis added.) Code of Judicial
Conduct, Rule 2.11 (a). The term ‘‘material witness’’ means ‘‘[a] person who
can give testimony relating to a particular matter no one else, or at least
very few, can give.’’ Black’s Law Dictionary (6th Ed. 1990).
At the threshold, we note that Judge Espinosa, by virtue of having presided
over the defendant’s criminal trial, is a ‘‘material witness’’ with respect to
the issue of the defendant’s competency to represent himself. This fact,
however, was not a ground for disqualification when the case was remanded,
as rule 2.11 ‘‘does not prevent a judge from relying on personal knowledge
of historical or procedural facts acquired as a result of presiding over the
proceeding itself.’’ Code of Judicial Conduct, Rule 2.11, comment (5). Indeed,
as the concurrence states, ‘‘[o]ur Supreme Court specifically remanded the
matter to Judge Espinosa because she was the judge who had the personal
knowledge of what had occurred during the relevant time frame so that
she, essentially, could articulate her findings and conclusions under the new
standard announced in Edwards.’’ In a judicial role, Judge Espinosa was
certainly entitled, if not required, to rely on her own observations as a
‘‘material witness’’ in rendering judgment on remand. After Judge Schuman
‘‘assumed responsibility’’ for the remand, Judge Espinosa was similarly enti-
tled to present those same observations in the role of a witness. See Gold
v. Warden, supra, 222 Conn. 320.
The question, however, is whether Judge Espinosa, as a material witness
who participated in the remand proceedings by offering material evidence,
as noted, an affidavit, can now assume the role of judge in this matter? We
need not cite the totality of authority that resolves this question in the
negative, as ‘‘[i]t has long been recognized under similar circumstances that
a judge cannot serve as a material witness as well as the trier of fact.’’
(Emphasis added.) Tyler v. Swenson, 427 F.2d 412, 415 (8th Cir. 1970).
‘‘Indeed, a judge presiding at a trial is not a competent witness, for the
duties of a judge and a witness are incompatible.’’ Lepper v. United States,
233 F. 227, 230 (4th Cir. 1916) (Woods, J., concurring). In the present case,
although Judge Espinosa was not presiding on remand, she participated in
the proceedings by offering an affidavit containing statements related to
her observations of the defendant’s self-representation during his trial. Thus,
when the court admitted her affidavit as evidence, Judge Espinosa was not
merely a ‘‘material witness’’ by virtue of having observed the defendant
during his trial, but a ‘‘material witness’’ who participated in the remand
proceedings as a witness offering testimony. See State v. Gardner, 661
N.W.2d 116, 118 (Iowa 2003) (judge functions as witness even though judge
does not actually take witness stand to testify). To be sure, the word ‘‘wit-
ness,’’ when used as a noun, means ‘‘[o]ne who testifies to what he has
seen, heard, or otherwise observed. . . . A person whose declaration under
oath (or affirmation) is received as evidence for any purpose, whether such
declaration be made . . . by deposition or affidavit.’’ (Citation omitted;
emphasis added.) Black’s Law Dictionary, supra. In addition, the word ‘‘testi-
mony’’ means ‘‘evidence as is delivered by a witness . . . either orally or
in the form of affidavits . . . .’’ (Emphasis added.) Id.
We conclude that it would run ‘‘against the grain of fairness’’; Tyler v.
Swenson, supra, 427 F.2d 415; to determine that Judge Espinosa, having
offered material testimonial evidence as an affiant and, thus, a witness, may
now assume a judicial role in this matter. Defense counsel stated to the
court that he ‘‘heartily’’ disagreed with the affidavit. The trial transcript
contradicts at least some of the statements set forth therein. Further, the
court based its decision on the affidavit in rendering judgment on remand.
If she were to attempt to carry out the remand in a judicial role now, Judge
Espinosa would find herself confronted with the irreconcilable, if not plainly
improper task of passing on the credibility and weight of her own disputed
and material testimony, as well as sitting in judgment of facts to which
she testified.
‘‘Simply stated, if a judge testifies as a material witness with regard to
an issue in a case, the remainder of the case must be heard by another
judge.’’ Lewis v. State, 275 Ga. 194, 196, 565 S.E.2d 437 (2002); State v.
Gardner, supra, 661 N.W.2d 118. It is because Judge Espinosa participated
in the proceeding by offering material and disputed testimonial evidence
as a witness, not merely because she was a ‘‘material witness’’ in the literal
sense, which leads us to conclude that she cannot assume a judicial role
in this matter now or in the future. For that reason, we disagree with the
concurrence that Judge Espinosa should be given the opportunity to carry
out the remand at this stage. In addition, for the reasons previously set forth
in this opinion, as well as the additional passage of time since the defendant’s
trial, we conclude that no other judge, at this point, could carry out the
remand. See part I B of this opinion.
27
The concurrence ‘‘also disagree[s] with the majority’s conclusion as
a matter of law that Judge Espinosa after eight years cannot remember
sufficiently the details of the defendant’s performance as a self-represented
litigant . . . .’’ (Citation omitted.) Nowhere do we state such a conclusion.
Rather, we assume, without deciding, that even if Judge Espinosa could
sufficiently recollect the defendant’s criminal trial at this point, she can no
longer carry out the remand in a judicial role because she has offered
material evidence as a sworn affiant, and thus a witness, in the proceedings.
See footnote 26 of this opinion. Insofar as the concurrence concludes that
Judge Espinosa was not a material witness because she did not witness any
of the defendant’s criminal acts, we respectfully disagree. The only issue
on remand was whether the defendant was competent to represent himself
at his criminal trial. The resolution of this issue turned on an evaluation of
the defendant’s ability to perform the basic tasks needed to present his own
defense without counsel. Judge Espinosa, as the judge who presided at trial,
was certainly a material witness to the defendant’s ability to present his
own defense without counsel. See Gold v. Warden, supra, 222 Conn. 320(trial judge could testify at new habeas hearing after remand because of
unique opportunity to observe the petitioner’s demeanor throughout
entire trial).
28
We respectfully disagree with the concurrence insofar as it summarily
concludes that we have ‘‘vitiated and invalidated’’ our Supreme Court’s
mandate in this matter. Rather, we conclude as a matter of law that our
Supreme Court’s mandate can no longer be carried out at this stage.
29
We pause to distinguish between the error in the present case, the
procedural error of failing to determine a defendant’s competency to repre-
sent himself when a doubt as to competency is raised, and the substantive
error of permitting a defendant to represent himself when he is incompetent
to do so. In the latter scenario, such a substantive error may constitute
structural error. Structural error, of course, is not subject to harmless error
analysis. ‘‘Cases involving structural error contain a defect affecting the
framework within which the trial proceeds, rather than simply an error in
the trial process itself. . . . Such errors infect the entire trial process . . .
and necessarily render a trial fundamentally unfair . . . . Put another way,
these errors deprive defendants of basic protections without which a crimi-
nal trial cannot reliably serve its function as a vehicle for determination of
guilt or innocence . . . .’’ (Internal quotation marks omitted.) State v. Lopez,
280 Conn. 779, 791, 911 A.2d 1099 (2007).
30
If the defendant was incompetent to represent himself, and the trial
court, on that basis, was bound to deny the defendant’s request to do so,
it was likewise bound to insist on representation by counsel. See footnote
15 of this opinion. Thus, in addition to affecting the defendant’s right to a
fair trial, the court’s failure to resolve the defendant’s competency may have
effectuated a deprivation of his right to counsel.
31
The concurrence states that our opinion, ‘‘[o]n the one hand . . . uses
the passage of eight years, and its conclusion as a matter of law of a failure
of judicial memory because of the passage of those eight years, to determine
that a new trial should be granted. On the other hand, at the new trial,
assuming that it takes place despite the defendant’s possible current (and
future) lack of competence to understand the charges and proceedings or
assist counsel in his defense, witnesses, primarily the defendant’s former
spouse, will be required to testify about events taking place almost two
decades ago. The logical but unstated extension of the majority’s failed
memory as a matter of law analysis is that there should be no new trial but
instead there should be a reversal of the conviction because no person,
including that of the defendant’s former spouse, can have sufficient memory
after approximately twenty years to be competent as a witness.’’
We respectfully disagree with the concurrence’s ‘‘failed memory’’ argu-
ment for two reasons. First, nowhere do we make a conclusion of law
regarding ‘‘a failure of judicial memory . . . .’’ See footnotes 26 and 27 of
this opinion. Second, even if we did, it is a non sequitur to conclude that
just because a judge cannot sufficiently recall the defendant’s ability to
represent himself in terms of a legal standard not contemplated at the time
of the defendant’s trial eight years ago, the state’s witnesses also will be
incompetent to testify in a new trial due to a lack of memory and, therefore,
no new trial will occur, notwithstanding the fact that the state’s witnesses
testified in the defendant’s 2006 trial. Indeed, the state’s witnesses, including
the defendant’s former spouse, testified at the 2006 criminal trial and were
subject to cross-examination. Thus, if a new trial occurs and a witness
cannot testify on account of a lack of memory, the former testimony of
that witness likely would be admissible. See Conn. Code Evid. § 8-6 (1) (if
declarant unavailable as witness, former testimony not excluded as hearsay
if [a] issues in former hearing are same or substantially similar to those in
hearing in which testimony now being offered and [b] party against whom
testimony now offered had opportunity to develop testimony in former
hearing); see also State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980)
(‘‘declarant witness may be considered unavailable . . . [if] the witness has
a lack of memory’’).