Date: 04-22-2016

Case Style: STATE OF CONNECTICUT v. CRAIG HINES

Case Number: AC 38002

Judge: Raheem L. Mullins

Court: Connecticut Appellate Court

Plaintiff's Attorney: Melissa L. Streeto, Michael Dearington, John P. Doyle, Jr

Defendant's Attorney: Katherine C. Essington

Description: The defendant, Craig Hines, was convicted, following a jury trial, of two counts of murder in violation of General Statutes § 53a-54a (a) and one count of carrying a pistol without a permit in violation ofGeneralStatutes§ 29-35(a).Onappeal,thedefendant claims that the court erred (1) in finding that he had been restored to competency to stand trial and (2) in removinghimfromthecourtroomduringjuryselection. We affirm the judgment of the trial court. I The defendant’s first claim is that the court abused itsdiscretionwhenitfoundatthesecondoftwocompetencyhearingsthathehadbeenrestoredtocompetency to stand trial. He raises three principal issues with the court’scompetencydetermination.First,hearguesthat thedeterminationwasunreasonablebecausehehadnot received ‘‘treatment’’ after he initially had been found incompetent by a prior judge. Second, he argues that the court ‘‘should have made a further inquiry and/or asked for a third expert opinion regarding [his] competency.’’ Third, he argues that the court ‘‘appeared to’’ havebaseditsdeterminationexclusivelyonthecompetency report prepared during his placement for inpatient treatment for the purpose of restoring him to competency. We disagree. The following history of the proceedings illuminates our considerationof thisclaim. OnSeptember 27,2013, defense counsel moved pursuant to General Statutes § 54-56d1 for a competency evaluation because the defendant recently had been evaluated by Allison Downer, the head psychiatrist at the Department of Correction, who had prescribed the defendant an antipsychotic drug to lessen his preoccupation with physical complaints resulting from a bat bite he allegedly suffered while in federal custody.2 Defense counsel expressed concern that this preoccupation would impair the defendant’s competency to stand trial. The court, Vitale, J., ordered that the defendant undergo a competency evaluation. Pursuanttothecourt’sorder,JohnBonetti,apsychiatrist, conducted a competency evaluation of the defendant, a report of which heprepared on October 4, 2013. Bonetti reported that during the evaluation the defendant complained of various pains and a chronic cough, whichheattributedtotheallegedbatbiteandforwhich he claimed he had not received proper medical care; the defendant’s fixation on his medical complaints prevented him from focusing on the interview. Bonetti reported that his review of the defendant’s medical records, however, revealed no evidence of these conditions. Whilepreparingthereport,BonettispoketoDowner, who confirmed the defendant’s fixation on the condi
tions caused by the alleged bat bite and described the defendant as ‘‘ ‘delusional at baseline.’ ’’ Likewise, Bonetti noted that the defendant’s ‘‘delusional thinking interfered with his ability to answer questions as it permeatedtheentireinterview.’’Bonetticoncludedthat the defendant was not competent to stand trial but that there was a substantial probability that he could be restored to competencyby a sixty dayinpatient psychiatric hospitalization. Thereafter, on October 9, 2013, the court, O’Keefe, J.,heldacompetencyhearingatwhichBonettitestified. Bonetti testified that the defendant’s psychiatric records, inwhich ‘‘itwas pretty consistentlystated that he carries a psychotic diagnosis, either schizophrenia oradelusionaldisorder,’’weresignificanttohisconclusion that the defendant was incompetent to stand trial. OnthebasisofBonetti’sreportandtestimony,thecourt foundthatthedefendantwasincompetenttostandtrial butthattherewasasubstantialprobabilitythathecould be restored to competency within sixty days, and the court ordered that he receive inpatient treatment at Connecticut Valley Hospital, Whiting Forensic Division (Whiting) for the purpose of restoring him to competency. AtWhiting,SusanMcKinley,alicensedclinicalsocial worker, conducted a second competency evaluation and prepared a report of that evaluation dated December 4, 2013. The second competency report disclosed the following. Neither a physical examination, which was performed on the defendant upon admission, nor bloodtestsrevealedanymedicalproblemsthatrequired additional testing or intervention. Nevertheless, the defendant reported that he was in a great deal of pain and complained of a sore throat, difficulty swallowing, ‘‘ ‘tissue decay,’ ’’ spinal pain, and problems with his esophagus, spleen, and pancreas. The defendant alternately attributed these complaints to the bat bite and to his food allegedly having been tampered with. Thereportalsodisclosedthatthedefendantgenerally refused to attend therapeutic and competency education group meetings at Whiting, consistently maintaining that he was competent to stand trial and that his problems were exclusively physical. At meal times, he was observed eating with enjoyment and without difficulty. In his free time, he played games, socialized withotherpatients,andengagedinlongtelephoneconversations with family and friends. He also lifted weights and engaged in vigorous exercise. In conducting the second competency evaluation, evaluators3 began conducting psychological testing of the defendant but stopped before completion because ofhis‘‘performanceandinvalidresponsestyle.’’Specifically, they noted that his performance on tests was inconsistent, and he ‘‘endorsed a high proportion of unusual symptoms that are not seen in patients with
genuine psychiatric illnesses,’’ bothof which suggested to evaluators that he may intentionally have been performing poorly. Evaluators diagnosed the defendant with malingering and antisocial personality disorder. Although the defendant previously had been diagnosed as psychotic, in the second competency report evaluatorsattributedhisbehaviortohispersonalityand concluded that there was no indication of a psychiatric disorder,mooddisturbance,orcognitivelimitationthat would prevent him from understanding or emotionally withstanding future court proceedings. They deemed the defendant ‘‘capable of engaging in rational, appropriate, and focused discussions when he chooses to do so,’’ and characterized his behavior as ‘‘a willful, deliberate effort to portray himself as seriously ill in an effort to thwart the judicial system.’’ Accordingly, evaluators recommended that the court find the defendant competent to stand trial. On December 10, 2013, the court, Clifford, J., held ahearingtodeterminewhetherthedefendanthadbeen restored to competency. McKinley, who was the only witnessatthehearing,testifiedregardingtheprocedure that staff followed during the defendant’s placement at Whiting. She testified that ‘‘[we] evaluated any issues thatwethoughtwerepertinent,we’reinterestedinproviding any interventions that may be necessary, medical, psychiatric or otherwise, and so on a day-to-day basis we evaluate[d] [his] needs . . . .’’ As noted in the report, McKinley testified that ‘‘[the defendant] tended to avoid the competency education groups and some of the therapeutic groups that were offered, but he was also able to participate in a variety of other activities of his choosing. We certainly can’t make anyone do anything that they’re interested in declining . . . .’’ Withregardtotheprocessbywhichevaluatorsdetermined that the defendant had been restored to competency, McKinley acknowledged that the defendant had refusedtocooperatewithattemptstoaskhimstandardized questions for determining competency, as a result of which the finding of competency was based on ‘‘observations ona day-to-daybasis withthe individual, interactions with [the defendant], information from staff on all shifts, and we completed—or attempted to complete—some psychological testing as well.’’ AccordingtoMcKinley,evaluatorsacceptedthevalidity ofthedefendant’spriordiagnoseswithparanoidschizophrenia, which, she acknowledged, is a permanent illness. On the basis of their own observations and evaluation, however, evaluators unanimously rejected schizophrenia as a diagnosis of the defendant’s current condition.4 On cross-examination, the prosecutor asked McKinley to comment on the defendant’s current behavior in thecourtroom.Theprosecutorasked,‘‘wouldyouagree with me that the moment I got up to start asking you
questions [the defendant] started coughing; is that correct?’’McKinleyreplied,‘‘Iheardhimclearinghisthroat. Yes.’’5 McKinley also testified that the defendant’s coughing in the courtroom ‘‘[was] out of the ordinary from what [she had] known,’’ and ‘‘[i]n general at Whiting [the defendant] appeared to be in excellent health and we saw no indication that he was suffering from any illness.’’ At the conclusion of McKinley’s testimony, the court invited counsel to present arguments. Defense counsel commented that ‘‘[i]t’s unique I think to find so many schizophrenic diagnoses, which are permanent and not transient, and then to not have that at all,’’ but did not argue that the defendant was incompetent, leaving that determinationtothecourt’sdiscretion.Theprosecutor, inarguingthatthedefendanthadbeenrestoredtocompetency, emphasized that ‘‘there was not one throat clear, not one nose blow, not one cough up until the pointthatthestategotupandstartedasking[McKinley] questions . . . and it kind of got stronger and louder as we got toward the end.’’ The court concluded that the defendant had been restored to competency.6 The court and the defendant then engaged in a lengthy colloquy. The defendant recited a litany of physical complaints and expressed frustration over what he perceived to be two years of inadequate medical treatment by the Department of Correction. The court responded that it would indicate the defendant’s request for medical attention on the mittimus. After a trial to a jury, the defendant was convicted ofallchargesandsentencedtoatotaleffectivesentence of 125 years imprisonment. This appeal followed. We begin our discussion with the well settled rule that ‘‘[t]he conviction of an accused person who is not legallycompetenttostandtrialviolatesthedueprocess oflawguaranteedbythestateandfederalconstitutions. . . . This rule imposes a constitutional obligation, [on the trial court], to undertake an independent judicial inquiry, in appropriate circumstances, into a defendant’s competency to stand trial . . . . [Section] 5456d (a) codified this constitutional mandate, providing in relevant part: A defendant shall not be tried, convicted or sentenced while the defendant is not competent. [A] defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense. ‘‘This statutory definition mirrors the federal competency standard enunciated in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curiam). According to Dusky, the test for competency must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has
a rational as well as factual understanding of the proceedings against him.’’ (Internal quotation marks omitted.) State v. Jordan, 151 Conn. App. 1, 30–31, 92 A.3d 1032, cert. denied, 314 Conn. 909, 100 A.3d 402 (2014). ‘‘We review the court’s determination of competency under an abuse of discretion standard. . . . In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Ourreviewofatrialcourt’sexerciseofthelegaldiscretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.’’ (Citation omitted; internal quotation marks omitted.) State v.Paulino,127Conn.App.51,61–62,12A.3d628(2011). Several principles guide our determination of whether the court’s conclusion that the defendant had been restored to competency was reasonable. First, ‘‘[t]he trial judge is in a particularly advantageous position to observe a defendant’s conduct during a trial and has a unique opportunity to assess a defendant’s competency. A trial court’s opinion, therefore, of the competencyofadefendantishighlysignificant.’’(Internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 523–24, 973 A.2d 627 (2009). Second, ‘‘[the] court is entitled to consider trial counsel’s assertions thathisclientiscompetent’’;Statev.Paulino,supra,127 Conn. App. 65; but ‘‘need not accept counsel’s opinion without question.’’ (Internal quotation marks omitted.) State v. Crawley, 138 Conn. App. 124, 141, 50 A.3d 349, cert. denied, 307 Conn. 925, 55 A.3d 565 (2012). Third and finally, ‘‘a trial court is [not] required to canvass the defendant personally as part of its independent inquiry into his competency to stand trial.’’ State v. Jordan,supra,151Conn.App.36.Withtheseprinciples in mind, we turn to the defendant’s specific arguments. A Thedefendant firstarguesthatthe courterroneously foundthathehadbeenrestoredtocompetencybecause he ‘‘had been previously found incompetent by a different judge . . . and he was not treated for his mental illness during the intervening period.’’ Instead of treating his mental illness, he argues, ‘‘McKinley’s team merely conducted a second competency evaluation.’’ Thestatecountersthatthisargumentfailsbecause§ 5456d does not prescribe the type of treatment that a defendant must receive before a judge may find that he has been restored to competency. We agree with the state. The defendant’s claim, that a court’s inquiry into whethera defendantpreviouslyfound incompetenthas been restored to competency is controlled by the type of treatment he has received in the interim, finds no support in the relevant statutes or case law. The stan
dard to be applied by a trial court determining a defendant’s competency is the same regardless of whether the defendant was previously found incompetent. See, e.g., State v. Edwards, 158 Conn. App. 119, 134–37, 118 A.3d 615, cert. denied, 318 Conn. 906, 122 A.3d 634 (2015); State v. Bigelow, 120 Conn. App. 632, 638, 643– 44, 994 A.2d 204, cert. denied, 297 Conn. 916, 996 A.2d 278 (2010). As previously noted, this standard directs the court to determine only whether the defendant is capable of understanding the proceedings against him and assisting with his own defense. State v. Jordan, supra, 151 Conn. App. 30–31. In arguing that he did not receive that ‘‘treatment’’ on which a finding of restoration to competency must be predicated, the defendant cites, without analysis, various portions of § 54-56d referring to ‘‘treatment.’’ None of these provisions, however, prescribes the type of treatment that a defendant must receive, let alone requiresacourttodeterminewhetheracourseoftreatment is adequate, before a court properly may find that he has been restored to competency. See General Statutes§ 54-56d(h)(1)(A)(directingcourt,onfinding substantial probability that presently incompetent defendant may be restored to competency, to ‘‘[place] . . . the defendant for treatment for the purpose of rendering the defendant competent’’); General Statutes § 54-56d(k)(directingcourttoholdhearingafterreceiving report and to ‘‘determine whether the defendant is competent or is making progress toward attaining competencywithintheperiodcoveredbytheplacement order’’); General Statutes § 54-56d (j) (permitting but not requiring court to request that competency report contain information regarding method of treatment). If the legislature had intended to require the court to inquire into the adequacy of the treatment received, it could have done so. Presented with this legislative omission,itisnotacourt’sroletoengraftlanguageonto thestatutetorequiresuchaninquiry.SeeMcCulloughv. Swan Engraving, Inc., 320 Conn. 299, 309, 130 A.3d 231 (2016). On the basis of the foregoing authority, the court did not abuse its discretion when it concluded, without evaluating whether the defendant underwent a particular course of treatment at Whiting, that the defendant was capable of understanding the proceedings against himandassistingwithhisowndefense.Statev.Jordan, supra, 151 Conn. App. 30–31; see State v. Edwards, supra, 158 Conn. App. 125 (noting that competency report and testimony indicated that defendant’s attending psychiatrist did not make specific diagnosis or administer medication during inpatient treatment becausedefendantexhibitednosignofpsychoticdisorder, and that disruptive behavior was result of choice). B Second, the defendant argues that ‘‘[i]nstead of
merelyacceptingtheconclusionsofthesecondcompetencyreport,JudgeCliffordshouldhavemadeafurther inquiryand/oraskedforathirdexpertopinionregarding [the defendant’s] competency’’ for two reasons: (1) the report’s reliability was questionable because the ‘‘conclusion [therein] that [the defendant] was not suffering from a major mental illness was so contrary to [prior] conclusion[s] reached by Dr. Bonetti, Dr. Downer . . . and[others]’’;and(2)thereportwasinternallyinconsistent because it reported that the defendant was obsessedwithhismedicalconditionyetconcludedthat hisphysicalcomplaintsdidnotpreventhimfromengaging in reasonable discussions. We disagree. ‘‘Itisconstitutionallypermissiblefortheburdentobe placedonthedefendanttoprove,byapreponderanceof the evidence, that he is incompetent . . . .’’ State v. Dort, 315 Conn. 151, 162, 106 A.3d 277 (2014). Accordingly, ‘‘[o]nce the court grants a motion for a competency examination, the burden rests on the [defendant as] moving party to prove that [he] is not competent . . . .’’ (Internal quotation marks omitted.) State v. Johnson, 253 Conn. 1, 23, 751 A.2d 298 (2000); see General Statutes § 54-56d (b). The burden remains on the defendant, as the moving party, to prove that he has not been restored to competency. See, e.g., State v. Bigelow, supra, 120 Conn. App. 643. At the competency hearing, ‘‘[t]he court may call its own witnesses and conduct its own inquiry.’’ (Emphasis added.) General Statutes§ 54-56d(b).Thecourtisequallyfree,however, to decide the issue of competency solely on the basis of the evidence presented by the parties. See General Statutes § 54-56d (b). In the present case, the court was not required to seek out additional evidence to resolve either of the inconsistencies the defendant cites before determining that he had been restored to competency. The burden wasonthedefendanttoprovethathestillwasincompetent.Atthesecondcompetencyhearing,thecourtheard extensive testimony from McKinley with regard to why her team concluded in the second competency report that the defendant did not suffer from a psychiatric affliction.Thedefendantdidnotpresentevidence,apart from the first competency report, to rebut either that conclusion7 or the diagnosis of malingering. The court also had before it the evaluators’ conclusion that the defendant was ‘‘capable of engaging in rational, appropriate, and focused discussions when he chooses to do so’’ and that his behavior was ‘‘a willful, deliberate effort to portray himself as seriously ill in anefforttothwartthejudicialsystem.’’Defensecounsel elected not to challenge McKinley with regard to how the defendant reportedly could engage in such rational discussionsdespite hisobsessionwithhis medicalconditions. The court was entitled to rely on the foregoing evidence in the record, which supported its conclusion
that the defendant was capable of understanding the proceedings against him and assisting with his own defense. Accordingly, we conclude that the court correctlyappliedthelawandthatitsfindingofcompetency basedonthesecondcompetencyreportandMcKinley’s testimony was reasonable. C Third and finally, the defendant argues that the court abused its discretion when it ‘‘appeared to’’ base its competency finding exclusively on the second competency report even though it should have (1) reviewed thefirstcompetencyreportandtranscriptsofthedefendant’s prior court appearances, (2) elicited defense counsel’s opinion as to whether the defendant had a rational understanding of the case and could assist in his defense, and (3) canvassed the defendant or taken into account personal observations of his courtroom behavior. We are not persuaded. We again note that the applicable standard of review limits us to determining ‘‘whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.’’ (Internal quotation marksomitted.)Statev.Paulino,supra,127Conn.App. 62.Asourdiscussionofthedefendant’spriorarguments makes clear, the record satisfies us that the court reasonablyconcluded, onthebasis ofa properapplication of the law, that the defendant had been restored to competency.Inanyevent,boththerecordandtheapplicable legal principles establish that the court acted properly.8 First, defense counsel explicitly chose to leave the determination of competency to the court’s discretion, pointing out only that ‘‘[i]t’s unique, I think, to find so many schizophrenic diagnoses, which are permanent and not transient, and then to not have that at all.’’ Even if defense counsel had asserted that the defendant was still incompetent, the court was free to accept or reject that opinion. State v. Crawley, supra, 138 Conn. App. 140–41; State v. Paulino, supra, 127 Conn. App. 64–65. Second,althoughthecourtdidnotcanvassthedefendant before deciding that he had been restored to competency, ‘‘a trial court is [not] required to canvass the defendant personally as part of its independent inquiry into his competency to stand trial.’’ State v. Jordan, supra, 151 Conn. App. 36. The court was at liberty to take into account the defendant’s behavior during the competency hearing, which, the record indicates, was consistent with the evaluators’ conclusion that he was wilfullytryingtothwartthejudicialprocess.Theprosecutor specifically drew the court’s attention to this behaviorbyaskingMcKinleytoconfirmhisobservation that the defendant appeared to have timed a coughing fit tocoincide withthe beginningof cross-examination. McKinley did so, and she also confirmed that such conduct was consistent with at least one prior occasion
on which the defendant apparently timed a coughing fitdeliberately.Seefootnote5ofthisopinion.Thecourt also personally observed the defendant’s behavior during a lengthy conversation with the defendant at the conclusion of the hearing. Counsel for the defendant did not ask the court to reconsider its ruling on the basis of that exchange. For the foregoing reasons, we conclude that the trial court properly exercised its discretion in determining that the defendant had been restored to competency. II The defendant’s second claim is that the trial court erred by removing him from the courtroom during jury selection. This claim is threefold. First, he contends thatbecausehewasunabletocontrolthebehaviorthat led to his removal, he did not knowingly and intelligently waive his constitutional right to be present for jury selection. Second and relatedly, he contends that on the basis of this behavior, the court should have ordered, sua sponte, another competency evaluation. Finally, he contends that instead of placing him in the courthouse lockup, the court should have placed him inaconferenceroomadjoiningthecourtroomorcontinued the proceedings to fashion a better accommodation. We are not persuaded. The following history of the jury selection process is relevant to this claim. On January 27, 2014, the court, Vitale, J., stated to defense counsel that ‘‘I’ve been patienttothispoint,butmypatiencewillhaveitslimits at some point regarding your client’s conduct.’’9 On January 29, 2014, the court told defense counsel that ‘‘if [the defendant’s behavior] becomes disruptive, and it’s approaching that now, if it continues then the court is going to have to unfortunately take action which I don’t want to do. But, I’m not going to allow the proceedings to be disrupted by those types of sounds based on what I’ve seen happen before during some preliminary hearings and the [second competency report]. So that’s a choice he’ll have to make.’’ Attheconclusionofthatday’sproceedings,thecourt madearecordofthedefendant’sbehavior‘‘intheevent [that] other actions are going to be required.’’10 Then, after noting that it previously had admonished the defendant to refrain from such behavior, the court observed that he had ‘‘managed to stop during my lengthy indoctrination to the jury this morning, during hislawyer’sremarks,during[theprosecutor’s]remarks, demonstrating, obviously, he can stop if he chooses to, andhehasengagedinthisbehaviorontherecordbefore mepriortothecourtorderingacompetencyexam.And obviously the court and counsel are both familiar with the results of the competency exam by Whiting dated December 4, 2013, which makes it abundantly clear that there is no medical or psychiatric reason for this
behavior, that he’s in complete control of his behavior, and that there’s no psychiatric or medical impairment that wouldcause this conductother than adirect effort on his part to attempt to disrupt the proceedings, and it’sbeyondsimplyclearinghisthroat.’’Defensecounsel acquiesced to the court’s characterization of the defendant’s behavior without objection and urged the defendant to behave appropriately. On January 31, 2014, the court announced that it would ‘‘need to address’’ the defendant regarding his continueddisruptivebehaviorbecauseitsprioradmonitions had been in vain. Defense counsel requested, in the absence of a ‘‘place, as there are in other courts, where he could be able to hear things that are going onbutotherpeoplecouldnothearhim,’’thatthedefendantbeplacedinaconferenceroomadjoiningthecourtroom instead of in the courthouse lockup. The court denied the request because the conference room was not sufficiently secure.11 Defense counsel objected to the defendant being placed in the lockup. Thecourtthencanvassedthedefendanttodetermine whether he understood that his conduct could result in a waiver of his constitutional right to be present for jury selection. In response, the defendant once again complained of an inability to obtain proper treatment forhisnumerousmedicalcomplaints.Thecourtreplied that it had attempted to address those complaints, that thesecondcompetencyreportindicatedthatthedefendant could choose to control his behavior, and that, already having warned the defendant, the court would no longer tolerate the behavior. The court ordered that the defendant be taken to the lockup after again noting that the adjoining conference room was insufficiently secure, advising the defendant that it would permit him to return to the courtroom upon request and with appropriate assurances that he would abstain from further disruptive behavior. Defense counsel asked for permission to consult with the defendant in the lockup before picking any other juror.Thecourtindicatedthatitwoulddenytherequest unless defense counsel could produce legal authority for granting it.12 Finally, the court instructed defense counsel to ask the defendant during the upcoming luncheon recess whether he wished to return to the courtroom. After the luncheon recess, defense counsel reported that the defendant had declined to return to the courtroom. The court recessed briefly so that defense counsel once again could invite the defendant to return; again, the defendant declined the invitation. On that day, two jurors were selected in the defendant’s absence. Before selecting one juror, defense counsel asked to consult with the defendant in the lockup. The court denied the request, noting that the
defendant had ‘‘waived his presence by his conduct.’’ When jury selection resumed on February 3, 2014, the defendant was present.13 Jury selection concluded without recorded incident. ‘‘We begin with afundamental tenet of criminal jurisprudence: a criminal defendant has a constitutional right to be present at all critical stages of his or her prosecution. Rushen v. Spain, 464 U.S. 114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant). . . . Although the constitutional right to be present is rooted to a large extent in the confrontation clause of the sixth amendment, courts have recognized that this right is protected by the due process clause in situations [in which] the defendant is not actually confronting witnesses or evidence against him. Snyder v. Massachusetts, 291 U.S. 97, 105–106, 108, 54 S. Ct. 330,78L.Ed.674(1934);seeStatev.Jarzbek,204Conn. 683,691–92,529A.2d1245(1987)(recognizingthatright to be present similarly is guaranteed by article first, § 8, of our state constitution), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).’’ (Citation omitted; internal quotation marks omitted.) State v. Edwards, supra, 158 Conn. App. 138. ‘‘[A trial] court may infer the defendant’s waiver [of the right to be present] from the totality of his acts and conduct, so long as the defendant has been adequately informed that the trial would continue in his absence.’’ State v. Gonzalez, 205 Conn. 673, 689, 535 A.2d 345 (1987). ‘‘The [United States] Supreme Court [in Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed 2d 353 (1970)] opined that [a]lthough mindful that courts mustindulge everyreasonablepresumption againstthe loss of constitutional rights . . . a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insistsonconductinghimselfinamannersodisorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. . . . Thedefendantmayreclaimhisconstitutionalrighttobe present if he demonstrates that he is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.’’ (Citation omitted; internal quotation marks omitted.) State v. Edwards, supra, 158 Conn. App. 140; see Practice Book § 42-47.14 ‘‘[T]hetrialcourthasbroaddiscretionindetermining whethertheremovalofanaccusedfromthecourtroom is an appropriate measure in light of the nature and severity of the improper conduct.’’ State v. Jones, 281 Conn. 613, 637, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). ‘‘Our appellate decisions illustrate the type of conduct that has been
deemed to constitute valid waivers of the right to be present at a critical stage of the prosecution. See . . . State v. Gonzalez, [supra, 205 Conn. 689] (defendant forfeited right to be present by acting in bizarre and disruptive manner); State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987) (defendant who was removed for interrupting voir dire, and then declined to return when sheriff informed him he could do so, unequivocally waived his right to attend jury selection).’’ (Citation omitted; internal quotation marks omitted.) State v. Edwards, supra, 158 Conn. App. 140–41. Finally, ‘‘[o]nce the trial court determine[s] . . . that the defendant [is] competent to stand trial, it [does] not have a further obligation to inquire whether the defendant’s forfeiture of his right to be present was the result of incompetence . . . .’’ State v. Gonzalez, supra, 205 Conn. 689. With these principles in mind, we turn to the defendant’s specific arguments. We consider together the defendant’s related arguments (1) that because he was unable to control the behavior that led to his removal, he did not knowingly and intelligently waive his constitutional right to be present for jury selection15 and (2) that on the basis of this behavior, the court should have ordered, sua sponte, another competency evaluation before determining that he had waived his right to be present. We disagree. The court properly determined that the defendant impliedlywaivedhisrighttobepresentbyhisdisruptive conduct. The record reveals that the court warned the defendantnotoncebutseveraltimesthatjuryselection would continue in his absence if he did not conduct himself appropriately. After each warning, the defendant continued to engage in the same loud, distracting, and offensive behavior. From his continued disruption of the proceedings, the court permissibly inferred the defendant’s waiver of his right to be present for jury selection. See State v. Gonzalez, supra, 205 Conn. 689–90. The court also was not required to order another competency evaluation on the basis of the behavior thatledtothedefendant’sexclusionfromjuryselection. Hisbehaviordidnotmateriallydifferfromthebehavior he exhibited before and during the prior determination of competency—namely, his loud, suspiciously timed coughing fits and associated insistence that he was suffering from various untreated medical conditions. ‘‘Whenacourthaspreviouslyfoundadefendantcompetent and that determination is premised on proper consideration of the relevant factors, the court’s inquiry when deciding whether to order another competency evaluation is whether the defendant’s condition has materially changed since [the] previous finding of competency.’’ (Internal quotation marks omitted.) State v. Edwards, supra, 158 Conn. App. 134.
As previously noted, when a court has determined that a defendant is competent to stand trial, in the absence of such a material change ‘‘it [does] not have a further obligation to inquire whether the defendant’s forfeiture of his right to be present was the result of incompetence . . . .’’ State v. Gonzalez, supra, 205 Conn. 689; see also id., 687, 689 (court obligated to inquire into defendant’s competency when informed midtrial that defendant had been given antipsychotic drug and attempted suicide but, having concluded that defendant nevertheless was competent, court not required to inquire into effect of antipsychotic drug on defendant’s forfeiture of right to be present). In the present case, the court’s conclusion that the defendanthadwaivedhisrighttobepresentwas‘‘based on what [the court had] seen happen before during somepreliminaryhearingsandthe[secondcompetency report]’’16 as well as its observations during jury selection. The court observed that the defendant refrained from the disruptive conduct during its indoctrination of thejury, ‘‘demonstrating[that] obviouslyhe canstop if he chooses to . . . .’’ On the basis of the defendant’s behavior, which remained consistent throughout the proceedings, the court concluded that ‘‘it [is] abundantly clear that there is no medical or psychiatric reason for this behavior, that he’s in complete control of his behavior, and that there’s no psychiatric or medical impairment that would cause this conduct other than a direct effort on his part to attempt to disrupt the proceedings . . . .’’ The defendant did not produce evidence demonstrating that this pattern of behavior differed at all, let alone materially, from his conduct at prior proceedings.17 We conclude that the court properly exercised its discretion in declining to order another competency evaluation on the basis of its independent inquiry into the defendant’s competency. See State v. Edwards, supra, 158 Conn. App. 137 (holding that court did not abuse discretion in relying on observations, input, and previouscompetencyevaluationasbasesfornotorderingadditionalcompetencyevaluation); State v. Jordan, supra, 151 Conn. App. 37–38 (holding that failure to order additional competency evaluation not abuse of discretion where defendant did not produce evidence that condition had changed since prior evaluation and record supported court’s determination that defendant’s behavior was attempt to disrupt proceedings); State v. Johnson, 22 Conn. App. 477, 489, 578 A.2d 1085 (defendant’s ‘‘obstreperous, uncooperative or belligerentbehaviordidnotobligatethecourttoorderacompetency examination’’ where defendant had ‘‘ability to cooperate but did not want to do so’’), cert. denied, 216 Conn. 817, 580 A.2d 63 (1990). We finally consider the defendant’s argument that the court abused its discretion by placing him in the
courthouse lockup when he was removed from jury selection. Specifically, he argues, the court erred ‘‘in not placing [him] in the conference room because [it] did not make a record as to why any security concerns could not be addressed by the judicial marshals,’’ in failing to explore all possible alternatives to placing him in the lockup, such as using closed circuit television, and in failing to continue the proceedings ‘‘until a better accommodation could be made.’’ The court compoundeditserror,heargues,bysubsequentlydenyingdefensecounsel’srequestto consultwiththedefendant before selecting jurors in his absence. We are not persuaded. ‘‘[T]here are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant . . . (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; [or] (3) take him out of the courtroom until he promises to conduct himselfproperly.’’ Illinois v. Allen, supra,397U.S.343– 44. Our rules of practice leave to the court’s discretion the determination of where a defendant who has been taken out of the courtroom shall be placed, provided only that the defendant must remain in the building in which the courthouse is located. See Practice Book § 42-47.‘‘[T]hetrialjudgeis bestequippedtodecidethe extenttowhichsecuritymeasuresshouldbeadoptedto prevent disruption of the trial, harm to those in the courtroom, escape of the accused, and the [commission] of other crimes . . . .’’ (Internal quotation marks omitted.) Sekou v. Warden, 216 Conn. 678, 691–92, 583 A.2d 1277 (1990). Although our appellate courts have viewed favorably a court providing an accommodation by which a defendant who has waived the right to be present may observetheproceedings;seeid.,696(‘‘thecourtpermitted [the defendant] to choose between two equally permissible alternatives: presence under restraint, or absence coupled with mechanical observation of the proceedings’’); State v. Strich, 99 Conn. App. 611, 618– 19, 915 A.2d 891 (holding that where defendant placed inholdingcellequippedwithspeakersystem,therewas ‘‘no flaw, constitutional or otherwise’’ in trial court’s removal of defendant from courtroom), cert. denied, 282 Conn. 907, 920 A.2d 310, cert. denied, 552 U.S. 901, 128 S. Ct. 225, 169 L. Ed. 2d 171 (2007); they have not suggested that such means are constitutionally required. In the present case, the court properly exercised its discretioninremovingthedefendanttothelockuponce it determined that the defendant had by his conduct waived his right to be present for jury selection. Contrary to the defendant’s assertion that the court did not make a record of its reason for removing him to the lockup instead of to the conference room adjoining the courtroom, thecourt expressly noted thatthe marshals
could not adequately secure the conference room, which adjoined a public hallway and, therefore, was an inappropriate place in the court’s opinion for a defendant facing trial on allegations of murder. See footnote 11 of this opinion. The court was in the best position toweightherisksassociatedwithplacingthedefendant intheconferenceroom.Havingdeterminedthatplacing the defendant in the conference room would be imprudent, the court was permitted to place the defendant in the courthouse lockup and was not required to delay the proceedings until all possible alternatives could be vetted. Having waived his right to be present for jury selection and having been properly removed to the lockup, the defendant was not entitled to confer with his attorney before the subsequent selection of any juror. Defense counsel did not provide the trial court with any binding legal authority in support of his argument that such consultation was required, nor has the defendant provided any here.18 Also, the court twice dispatched defense counsel to the lockup to inquire whether the defendant wished to return to the courtroom for jury selection. The defendant twice declined the invitation to return. If the defendant had wanted to confer with his counsel before any juror was selected, he could have made the required assurances and returnedtothecourtroom.‘‘[N]odefendanthasaunilateral right to set the time or circumstances under which he will be tried. . . . We cannot permit an accused to elect to pursue one course at the trial and then . . . to insist on appeal that the course which he rejected at the trial be reopened to him . . . . [T]he protection which could have been obtained was plainly waived . . . . The court only followed the course which [the defendant] himself helped to chart . . . .’’ (Citations omitted; internal quotation marks omitted.) State v. Drakeford, supra, 202 Conn. 80–81 (court did not err inproceedingwithjuryselectionafterdefendantvoluntarily absented self).

Outcome: The judgment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: