Date: 05-14-2016

Case Style: STATE OF CONNECTICUT v. JEFFREY T. CONNOR

Case Number: SC 19421

Judge: Andrew J. McDonald

Court: Connecticut Supreme Court

Plaintiff's Attorney: Matthew A. Weiner, Gail P. Hardy, Anne Mahoney, Denise B. Smoker

Defendant's Attorney: Mary Boehlert

Description: In State v. Connor, 292 Conn. 483, 487, 533, 973 A.2d 627 (2009), this court remanded the criminalcaseofthedefendant,JeffreyT.Connor,tothe trial court with direction to reconsider the defendant’s competency to represent himself in light of a new standard that this court adopted in the defendant’s direct appeal. Following that remand, the trial court concludedthatthedefendanthadbeencompetenttorepresenthimself,andthedefendantchallengedthatdecision before the Appellate Court as an abuse of discretion. See State v. Connor, 152 Conn. App. 780, 100 A.3d 877 (2014). The dispositive issue in the state’s certified appealiswhethertheAppellateCourtproperlyreversed thetrialcourt’sjudgmentonthegroundthattheremand hearing was procedurally flawed. The state contends that the Appellate Court raised this issue sua sponte in derogation of Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 162–64, 84 A.3d 840 (2014) (Blumberg). We agree and, accordingly, reverse the judgment of the Appellate Court and remand the case to that court with direction to consider the issue raised in the defendant’s appeal. Therecordrevealsthefollowingundisputedfactsand procedural history. The defendant was charged with a number of crimes1 in connection with the abduction of his former wife. State v. Connor, supra, 292 Conn. 486, 488. The extensive pretrial proceedings reflected repeated attempts by the trial court to ascertain the defendant’s competency both to stand trial and to discharge his court-appointed counsel and represent himself. Id., 489. The defendant’s competency had been called into doubt due to the fact that he had suffered a debilitating stroke and exhibited signs of mental illness.Id.,490–91.Theefficacyoftheseproceedingswas complicated by the defendant’s refusal to cooperate with the medical professionals tasked with evaluating him andhis intermittent unresponsiveness incourt. Id., 491–92, 497. In reliance on the opinion of several medical professionals, the trial court, McMahon, J., concluded that the defendant’s refusal to cooperate was ‘‘ ‘volitional’ ’’; id., 495; and the trial court, Miano, J., thereafterconcludedthatthedefendantwas‘‘malingering,’’ and found him competent to stand trial. Id., 499. The defendant’s case proceeded to trial before Judge Espinosa,2whosimilarlyconcludedthatthedefendant’s unresponsiveness during jury selection reflected his continued ‘‘ ‘malingering.’ ’’Id., 500–501.The defendant explained that he had previously refused to cooperate becausehedidnotwanthisappointedcounseltorepresent him, and requested that he be permitted to representhimself.Id.,501.Afterdefensecounselsummarized the history of the case with respect to the defendant’s competency and desire to represent himself, Judge Espinosa canvassed the defendant, asking him ques
tions about, inter alia, his educational background and his ability to recall information pertinent to his case. Id., 501–502. Judge Espinosa ultimately concluded that the defendantwas ‘‘competent to representhimself. He is articulate, he’s lucid, he knows what he’s doing. He . . . devised a calculated plan to disrupt the trial in front of Judge Miano because he wasn’t getting his way with his lawyer . . . .’’ (Internal quotation marks omitted.) Id., 503. Judge Espinosa therefore permitted the defendant to represent himself, but appointed his defensecounselasstandbycounsel.Id.Ajuryconvicted thedefendant onallbutone ofthecharges againsthim. Id., 504. Thedefendantdirectlyappealedthejudgmentofconviction to this court claiming, inter alia, that Judge Espinosa had improperly found that he was competent to represent himself. Id., 505. At the time of the defendant’s trial, our courts were bound by federal case law that had indicated that‘‘a [criminal] defendant who has beenfoundcompetenttostandtrialasamatterofstate law . . . also is competent to waive the right to counsel. Application of a stricter competency test in the latter analysis than was used in the former would place anunconstitutionalburdenintheexerciseofthedefendant’s federal constitutional right of self-representation.’’ State v. Day, 233 Conn. 813, 825, 661 A.2d 539 (1995), overruled in part by State v. Connor, 292 Conn. 483,528n.29,973A.2d627(2009).Whilethedefendant’s appeal was pending, however, the United States Supreme Court clarified that individual states may adopt standards for determining whether a defendant is competent to represent himself that are more demanding than the standard used for determining whether a defendant is competent to stand trial. See Indiana v. Edwards, 554 U.S. 164, 177–78, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008). Accordingly, although amorestringentstandardwasnotconstitutionallymandated, this court elected to adopt such a standard in the defendant’s appeal pursuant to the exercise of our supervisoryauthority.Statev.Connor,supra,292Conn. 528 n.28. Under this standard, when a trial court is presented with a mentally ill or mentally incapacitated defendantwhohasbeenfoundcompetenttostandtrial; id., 527; a defendant’s competency to represent himself would depend ‘‘on his ability to carry out the basic tasks needed to present his own defense without the help of counsel . . . notwithstanding any mental incapacity or impairment serious enough to call that ability into question.’’ (Citation omitted; internal quotation marks omitted.) Id., 530. The court noted, however, that ‘‘[b]ecause Edwards had not been decided prior to the conclusion of the trialinthepresentcase,JudgeEspinosahadnoalternative, in light of our holding in State v. Day, supra, 233 Conn. 825, but to permit the defendant to represent himself once it was determined that he was competent
tostand trial.Wetherefore donotknow whetherJudge 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 conductthetrialproceedingsbyhimself.Inmakingthis determination, the trial court, which . . . is ‘best able to make [such a] fine-tuned mental capacity [decision], tailored to the individualizedcircumstances of a particular defendant’; Indiana v. Edwards, supra, 554 U.S. 177; should 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 hadsuffered,andbyanymemoryproblemsthathemay 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 suffered from a mental illness that, alone or in combination with his stroke, may have rendered him incompetenttorepresenthimself.Accordingly,thetrial court may seek to have the defendant examined again if it appears that such an examination would be helpful inresolvingtheissuepresentedonremand.’’(Footnotes omitted.)Statev.Connor,supra,292Conn.528–29.The court noted that, if the trial court elected to do an evaluation and the defendant persisted 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 recollection of the proceedings and its review of the trial transcript and arguments of counsel.’’ Id., 529 n.31. In early 2011, Judge Espinosa began the remand proceedings, but was elevated to the Appellate Court before they could be completed. See footnote 2 of this opinion. In September, 2011, Judge Schuman assumed responsibility for the remand proceedings. In January, 2012,JudgeEspinosaexecutedanaffidavitbasedonher recollections of the defendant’s trial. Judge Espinosa’s affidavit stated, inter alia, that the defendant had ‘‘appeared to be engaged in every aspect’’ of his trial, had ‘‘demonstrated an understanding of the evidence presented,’’andhad‘‘carriedoutthebasictasksneeded to present his own defense in a manner similar to other self-represented’’ parties that had appeared before her. Sheacknowledgedthatthedefendanthadmadecertain ‘‘irrelevant’’ statements, but opined that they appeared to be calculated attempts to elicit sympathy from the jury.JudgeEspinosafurtherattestedthatthedefendant
had ‘‘demonstrated that he was sufficiently capable of carrying out the basic tasks needed to present his own defense without the assistance of counsel.’’ Judge Schuman subsequently held two hearings. At the first hearing, Judge Schuman outlined his plan to makeadeterminationregardingthedefendant’scompetency to represent himself on the basis of the trial transcripts, Judge Espinosa’s affidavit,3 and oral argument from the parties. At the end of the hearing, Judge Schuman appointed counsel for the defendant because he was unresponsive. At the second hearing, the court granted defense counsel’s request to admit the defendant’s medical records from the Department of Correction. At no point did anyone object to Judge Schuman conducting the proceedings or to the procedure proposed by Judge Schuman to make the competency determination.4 Judge Schuman thereafter issued a memorandum of decisioninwhichhedeterminedthatthedefendanthad been competent to represent himself at the time of his trial. Judge Schuman first set forth a summary of the defendant’s conduct during trial, gleaned from the trial transcripts. He then turned to the defendant’s medical recordsandexplainedwhyhehaddeclinedtogivethem any weight. He noted that the medical professionals whohadformedopinionsaboutthedefendant’scompetency to stand trial had not observed the defendant at trial and would not be helpful in assessing the legal question of whether the defendant could adequately represent himself despite any mental impairment. Finally, he set forth Judge Espinosa’s observations, as reflectedinheraffidavit.Inhisanalysis,JudgeSchuman acknowledged that the transcripts had revealed some troublingissuesregardingthedefendant’sabilitytorepresenthimself.Nonetheless,heconcludedthatthemost serious charges against the defendant were not readily defensible and noted Judge Espinosa’s opinion that someofthedefendant’sactionsmayhavebeenattempts to gain sympathy from the jury. In conclusion, Judge Schuman noted: ‘‘Judge Espinosa has made the critical findingthatthedefendant,whilelackingtechnicalproficiency, could perform the basic tasks needed to defend himself without the assistance of counsel. That finding establishes that the defendant’s performance has met the ultimate standard that applies in this context. . . . Thecourtmustgiveconsiderabledeferencetothisfinding because Judge Espinosa heard the trial. Reading thetranscriptisnosubstitutefortheopportunity,which onlyJudgeEspinosahad,toobservewhetherthedefendant had a reasonable understanding of how the trial processworked,toassesswhetherhisoccasionalunorthodoxyrepresentedfumblingineptitudeorwilfulstrategy, and to measure just how well the defendant interactedwiththejury.BasedlargelyonJudgeEspinosa’s first hand assessment of the defendant’s performance, the court concludes that the defendant was
competent to represent himself at trial.’’ (Citation omitted.) The defendant appealed to the Appellate Court from thejudgment,claiminginhisbrieftothatcourtthat‘‘the trial court abused its discretion when it erroneously concludedthatthe[defendant]wascompetenttorepresent himself at trial despite his mental illness or mental incapacity.’’Specifically,thedefendantargued‘‘thatthe evidence in this case . . . presents a substantial basis for the [trial court] to have found that [the defendant] was incompetent to represent himself at trial.’’ In support of that claim, the defendant cited the behavior and diagnoses documented in his medical records, the fact that his competency had been questioned on numerous occasions prior to trial, and his behavior at trial evidenced in the trial transcripts. In its brief, the state respondedbycontendingthattheevidence,particularly Judge Espinosa’s affidavit, established that the trial court properly concluded that the defendant was competent to represent himself. The Appellate Court reversed the trial court’s judgment, concluding that the trial court ‘‘did not conduct a meaningful hearing to evaluate retrospectively the competencyofthedefendant.Indeed,theindeterminate state of the record precluded the court from retrospectivelydeterminingthedefendant’scompetencywiththe degree of reliability that would have accompanied a competency determination contemporaneous with the defendant’s trial.’’ State v. Connor, supra, 152 Conn. App. 795–96. The court further determined that, because ‘‘of the unorthodox sequence of events on remand’’ and the fact that eight years had passed since the defendant’s trial, a ‘‘procedurally adequate competencydetermination’’was‘‘nolongerpossible’’because it ‘‘would be unduly and impermissibly speculative’’; id., 810–11; and the defendant was entitled to a new trial.5 Id., 817. Thestatethereafterfiledamotionforreconsideration or reargument en banc, claiming that the Appellate Court had violated Blumberg by raising sua sponte the issueofwhetherthedefendanthadreceivedameaningful hearing. The Appellate Court denied the state’s motion. We then granted the state’s petition for certification to appeal to this court, limited to the following issues: (1)‘‘DidtheAppellateCourtproperlyconsiderwhether the trial court’s remand hearing was procedurally flawed?’’; and (2) ‘‘If the answer to the first question is in the affirmative, did the Appellate Court properly conclude that the defendant’s convictions must be vacated?’’ State v. Connor, 315 Conn. 903, 903–904, 104 A.3d 757 (2014). With respect to the first question, the state claims that the defendant never raised, and therefore waived, any claim that the remand proceedings were procedurally flawed, and, accordingly, the Appel
late Court’s decision to resolve the appeal sua sponte on this basis violated Blumberg. The defendant contends that the Appellate Court properly decided the appeal on the basis of issues raised by the parties, but argues that, even if the Appellate Court raised the proceduralissuesuasponte,doingsowasproperunder Blumberg. We agree with the state’s argument on the first certified question, and therefore need not reach the second certified question. Ourappellatecourtsgenerallydonotconsiderissues that were not raised by the parties. Blumberg, supra, 311Conn.164.Thisisbecause‘‘oursystemisanadversarialoneinwhichtheburdenordinarilyisontheparties to frame the issues . . . .’’ Id. There are, however, well established exceptions to this rule. In Blumberg, we surveyed our case law in which we have made such exceptions and categorized the circumstances under which reviewing courts properly may raise and decide unpreservedissues.Id.,161–64.Wenotedthatanappellatecourthasdiscretiontoraiseanunpreservedissueif threeconditionsaremet:(1)exceptionalcircumstances exist; (2)the partieshave beenafforded anopportunity to be heard on the issue; and (3) there is no unfair prejudice to the party against whom the issue is to be decided. Id., 128. Before turning to the question of whether those conditions were satisfied in the present case, we must determine whether the defendant asserted a claim that the remand proceedings were procedurally flawed or whether the Appellate Court raised this issue sua sponte.Althoughweapplytheabuseofdiscretionstandard to the question of whether the Appellate Court properlydeterminedthattheBlumbergconditionswere satisfied; id., 167–68; this threshold waiver question is subjecttoplenaryreview.See Statev.Davis,311Conn. 468, 477, 88 A.3d 445 (2014); State v. Commins, 276 Conn. 503, 510, 886 A.2d 824 (2005), overruled on other grounds by State v. Elson, 311 Conn. 726, 754, 91 A.3d 862 (2014); cf. Flannery v. Singer Asset Finance Co., LLC,312Conn.286,299,94A.3d553(2014)(interpretation of pleadings subject to plenary review). We concludethatthedefendantdidnotraisetheissueonwhich the appeal was decided, and, therefore, the Appellate Court raised it sua sponte. The record reveals the following additional facts and procedural history relevant to our resolution of this issue. The remand hearing proceeded before Judge Schumanwithoutthedefendantorhiscounselinterposing any objections. Other than his medical records, admitted over the state’s objection, the defendant did not attempt to introduce any new documentary evidence or witness testimony. Defense counsel acknowledged that they had sought out mental health professionals toevaluate the trial transcripts,but those professionals had indicated that they would be unable
torenderanykindofasignificantopiniononthatbasis. The defendant never sought to have Judge Espinosa testify,nordidhearguethatheraffidavitwaslackingin any way. Indeed, defense counsel argued before Judge Schuman ‘‘that we have before us the affidavit of Judge Espinosa,ononehand,andthetranscriptsontheother, and in between are medical records from the Department of Correction, which I would suggest to the court . . . would put to rest the idea . . . whether or not [the defendant] was, at the time, suffering from any mentalillness.’’Atthecloseofthehearings,inresponse to the state’s reliance on Judge Espinosa’s affidavit, defensecounselstated:‘‘Isupposethesimplestthingfor the court to do here, because [the case] was remanded specifically to Judge Espinosa for a finding, is to just . . . accept her affidavit at face value and move on.’’ Nonetheless, defense counsel noted that he disagreed with the conclusions that Judge Espinosa had drawn from the conduct displayed by the defendant. When Judge Schuman later asked how much deference he should give to the affidavit, defense counsel stated: ‘‘I am under no illusion that you won’t give deference at all;asIsaid,Idisagreewithit.Idisagreewithitheartily, but she was the judge and it was returned to her for her opinion.’’ Following Judge Schuman’s decision, the defendant claimed in his brief to the Appellate Court that ‘‘the trial court abused its discretion when it erroneously concludedthatthe[defendant]wascompetenttorepresent himself at trial despite his mental illness or mental incapacity.’’ In support of that claim, the defendant argued ‘‘that the evidence in this case . . . presents a substantial basis for the [trial court] to have found that [the defendant] was incompetent to represent himself at trial.’’ The defendant cited the information documented in his medical records, the fact that his competency had been questioned on numerous occasions prior to trial, and his behavior at trial as evidenced by the trial transcripts. The defendant argued that the evidenceinhiscasewascomparabletothatin Indiana v. Edwards, supra, 554 U.S. 177–78, wherein the trial courthadconcludedthatthedefendantwasnotcompetent to represent himself despite his competency to stand trial. In the present case, the defendant’s analysis of his claim made no reference to Judge Espinosa’s affidavit; he simply acknowledged its filing and conclusioninhispreliminarystatementofthefactsandprocedural history of the case. The state’s responsive brief contendedthattheevidence,particularlyJudgeEspinosa’s affidavit, established that the trial court properly concluded that the defendant was competent to represent himself. In its opinion, the Appellate Court initially broadly framed the issue before it as whether the trial court ‘‘improperly determined that [the defendant] was competent to represent himself . . . .’’ State v. Connor,
supra, 152 Conn. App. 795. The Appellate Court then noted that, although such determinations ordinarily would be made at a time substantially contemporaneous with a mentally ill or incapacitated defendant’s request for self-representation, that did not happen in the present case. The Appellate Court noted that retrospective (or nunc pro tunc)6 competency determinations are generally disfavored and only permissible when they are the product of a meaningful hearing. Id., 801. The Appellate Court further explained: ‘‘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 implicitlydeterminedthatitwaspermissibleforthetrialcourt torendersuchadeterminationatthattime.Theimplied permissibilityofthenuncprotunccompetencydetermination,however,waspredicatedontheassumptionthat Judge Espinosa would conduct the remand proceedings, as was plainly set forth in our Supreme Court’s mandate to the trial court. . . . Judge Espinosa, however, did not conduct the remand proceedings. . . . 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 determination was improper, we must examine the basis of and grounds of Judge Schuman’s determinationthatthedefendantwascompetenttorepresent himself . . . .’’ (Citations omitted; footnotes omitted.) Id., 802–804. The court noted that, although this court had assumed that Judge Espinosa’s determination would require the exercise of discretion, Judge Schuman did not, under the circumstances, make the discretionary determination that this court had sought from Judge Espinosa. Id., 803 n.21. The court reasoned that ‘‘[b]ecausethejudgesofourSuperiorCourtdonothave 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.’’7 Id. In considering whether Judge Schuman had conducteda‘‘meaningful,’’andthereforepermissible,retrospective competency hearing, the Appellate Court definedameaningfulhearingasoneinwhich‘‘thestate of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant’s condition at the time of the original . . . proceedings.’’ (Internal quotation marksomitted.)Id.,804.TheAppellateCourtexplained that the ‘‘primaryobject’’ of its inquiryinto whether the defendant had received a meaningful hearing was ‘‘to determine whether the quantity and quality of the evidence would have permitted the court on remand to reliably reconstruct the defendant’s competency at the time of trial.’’ Id., 805.
The Appellate Court then proceeded to analyze whether the remand hearing had been meaningful by applying a four factor test often used by federal courts to determine whether a nunc pro tunc hearing to determine a defendant’s competency to stand trial is meaningful. Id., 804–805. Specifically, the Appellate Court considered: (1) the amount of time that had elapsed betweenthedefendant’strialandthecompetencydetermination; (2) the availability of medical evidence that was contemporaneous with the trial; (3) statements by thedefendantinthetrialrecord;and(4)theavailability of individuals who were in a position to interact with the defendant before and during trial. Id. Applying this test, the court first noted that the competency determination occurred approximately six years after trial. Id., 805. The court then effectively determined that the defendant’smedical recordswerenot reliableevidence astohiscompetencyto representhimselfbecausethey were from a time period preceding his trial, they included many illegible entries, and they contained other entries using medical terminology that could not be understoodwithout theaid ofexpert testimony.8 Id., 805–806. The court next determined that the defendant’s statements at trial were ‘‘of minimal utility without a proper understanding of [the defendant’s] mental state at that time,’’ which it concluded could not have beenaccuratelyassessedgiventhe stateofthecontemporaneous medical evidence that was available to the court. Id., 806–807. Insofar as some of the defendant’s statements seemed to indicate that he may have been competent to represent himself, the Appellate Court reasoned that those statements could have been the productofmentalillness.Id.,807.Finally,theAppellate Court determined that, although Judge Espinosa had observed the defendant during the relevant time, her ‘‘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 . . . .’’ Id. The court noted that Judge Espinosa’s affidavit had been made without knowledge of the defendant’s subsequently admitted medical records and that her ultimate opinionconflictedwithherstatementsattrialregarding the defendant’s competency.9 Id., 808–809. In balancing thesefactors,theAppellateCourtultimatelyconcluded that the trial court had not conducted a meaningful hearing. Id., 809–10. From our review of this record, it is apparent that, although the Appellate Court’s initial framing of the issue—whether the trial court ‘‘improperly determined that [the defendant] was competent to represent himself’’—was consistent with the parties’ dispute at its broadest level; id., 795; its decision was based on an issue that was not raised by the parties. The defendant challenged the substantive basis of Judge Schuman’s decision, claiming that certain evidence proved that he
was not competent to represent himself. By contrast, the Appellate Court decided whether, in light of the fact that Judge Espinosa had not presided over the remand proceedings, any other trier of fact could have madeadeterminationregardingthedefendant’scompetency given the substantial amount of time that had passed and the state of the record. The Appellate Court effectively concluded that, although this court had approved the making of a competency determination on the basis of a review of the trial transcripts, oral argument of the parties, and Judge Espinosa’s personal observations,thosesameconsiderationsconstitutedan inadequate basis to afford the defendant a meaningful competency hearing. The defendant never questioned Judge Schuman’s ability to make a competency determination, whether because a significant amount of time had elapsed since thedefendant’strialorbecauseJudgeSchumanhadnot presided over that trial. The defendant never claimed, either before the Appellate Court or the trial court, that the evidence was insufficient or unreliable such that JudgeSchumancouldnotmakeadeterminationregarding his competency. Indeed, the defendant conceded that Judge Schuman properly could afford substantial deferencetoJudgeEspinosa’sconclusionsinheraffidavit,arguing onlythatthe courtshouldfind theevidence contained in the defendant’s medical records a more compelling basis to reach a contrary conclusion. The defendant did not, nor could he claim, that Judge Schuman improperly precluded him from introducing evidence relevant to his competency. Therefore, any such claims would have been waived by the defendant. In other words, the parties focused exclusively on whether the trial court properly determined that the defendant was competent to represent himself on the basis of the evidence properly before it, whereas the AppellateCourtanalyzedasathresholdmatterwhether the circumstances and evidence allowed the trial court to make any competency determination at all.10 Although the Appellate Court considered the evidence that the parties cited, it did so through the lens of whether the evidence provided the defendant with a meaningful hearing, not whether the trial court made a proper determination on the basis of that evidence. Indeed, the Appellate Court weighed this evidence againstthepassageoftime,aconsiderationthatneither party raised at any stage of the proceedings. We thereforearecompelledtoconcludethattheAppellateCourt decidedtheappealonthebasisofanissuethatitraised sua sponte. In light of this conclusion, we turn to the question ofwhethertherequirements forraisinganunpreserved issue sua sponte were satisfied. As previously noted, we review the Appellate Court’s decision as to this matter for an abuse of discretion. Blumberg, supra, 311
Conn. 167–68. Although the state contends that none of the Blumberg requirements was satisfied, we focus on two of them: (1) whether the parties were given an opportunity to be heard on the issue; and (2) whether therewasunfairprejudicetothestate,thepartyagainst whom the issue was decided. Id., 128. With respect to the opportunity to be heard, the recordrevealsthefollowingrelevantfacts.Priortooral argument, the Appellate Court did not order the parties to file supplemental briefs on the question of whether the defendant had been given a meaningful hearing. The Appellate Court did not issue an order directing the parties to be prepared to discuss that issue at oral argument. The issue arose for the first time during the state’s rebuttal argument through questions by the Appellate Court panel. The panel questioned the state, for example,on whetherthere hadbeen anydiscussion of making Judge Espinosa available for cross-examination and whether there had been any objection to the manner in which her affidavit was received. The Appellate Court thereafter did not instruct the parties to file supplemental briefs concerning these issues. The court in Blumberg specifically phrased the requirement that a party be heard on an issue as ‘‘an opportunity . . . to be heard by way of supplemental briefing . . . .’’ (Emphasis added.) Id., 161–62; see also id., 157 n.26 (citing ‘‘the requirement that parties must be given an opportunity to brief an issue that the reviewing court has raised sua sponte’’). Our case law alsohasestablishedthatif‘‘theAppellateCourtdecides to address an issue not previously raised or briefed, it may do so only after requesting supplemental briefs from the parties or allowing argument regarding that issue.’’ Statev. Dalzell,282Conn.709,715,924A.2d809 (2007),overruledinpartonothergroundsbyBlumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 162 n.34, 84 A.3d 840 (2014). Consistent with this jurisprudence, this court, on occasion, has issued orders instructing parties to be prepared to discuss certain issues at oral argument withoutorderingsupplementalbriefingonthoseissues. See, e.g., Gould v. Freedom of Information Commission, 314 Conn. 802, 808 n.9, 104 A.3d 727 (2014) (whether plaintiff was aggrieved); Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29, 35 n.6, 84 A.3d 1167 (2014) (whether jurisdiction existed for cross appeal); Broadnax v. New Haven, 284 Conn. 237, 240 n.4, 932 A.2d 1063 (2007) (whether final judgment existed); Board of Education v. Nonnewaug Teachers’ Assn., 273 Conn. 28, 31, 866 A.2d 1252 (2005) (impact of recently issued decision). Principally, this court has used this procedure when a jurisdictional concerncomestothiscourt’sattentionaftertheparties have filed their briefs, which is a matter that the court
is required to address even if not raised by the parties. Blumberg, supra, 311 Conn. 128. Thus, it is clear that, at a minimum, the parties must be provided sufficient notice that the court intends to consider an issue. It is implicit that an opportunity to be heard must be a meaningful opportunity, in order tosatisfyconcernsoffundamentalfairness.Seeid.,156 n.24 (‘‘[f]undamentalfairness dictates that aparty must be afforded the opportunity to address an unpreserved claim on appeal’’). The parties must be allowed time toreviewtherecordwiththatissueinmind,toconduct research, and to prepare a response. A meaningful opportunity is not provided when a party is asked a question about a different claim, not previously raised, forthefirsttimeatoralargument.Moreover,theAppellate Court’s questions in the present case did not make clear that it intended to decide whether a retrospective competency proceeding was permissible and that it would make such a determination under a test that had notbeenraisedinthebriefsofeitherparty.Accordingly, the Appellate Court failed to provide the state with an opportunity to be heard on the dispositive issue. If the absence of such an opportunity was the only concern in the present case, we could remand the case totheAppellateCourttoaffordthepartiesthatopportunity. See, e.g., Haynes v. Middletown, 306 Conn. 471, 475, 50 A.3d 880 (2012). The state also contends, however, that it was unfairly prejudiced by the fact that this issue was never raised before the trial court. The state argues that it would have proceeded differently had the defendant objected to the procedure used by Judge Schuman. Specifically, the state contends, if the defendant had objected to having any judge other than Judge Espinosa conduct the remand proceedings, it would not have objected to Judge Espinosa11 conducting the proceedings or would have actively sought to have her do so.12 Unfairprejudicemaybefound‘‘whenapartydemonstratesthatitwouldhavepresentedadditionalevidence or that it otherwise would have proceeded differently if the claim had been raised at trial. . . . Moreover, because it may be difficult for a party to prove definitively that it would have proceeded in a different manner and, as a result, would suffer unfair prejudice if the reviewingcourtweretoconsidertheunpreservedissue, once that party makes a colorable claim of such prejudice, the burden shifts to the other party to establish that the first party will not be prejudiced by the reviewingcourt’sconsiderationoftheissue.’’(Citations omitted.) Blumberg, supra, 311 Conn. 156–57. In the present case, the state has made a colorable claim that it was unfairly prejudiced. Had the state known that it should have sought to have Judge Espinosa preside over the remand proceedings, it therebycouldhavealleviatedtheAppellateCourt’scon
cerns regarding the substance of her affidavit. General Statutes§ 51-197c(f)providesamechanismthatwould have allowed Judge Espinosa to preside over the remand proceedings notwithstanding her elevation to the Appellate Court. Section 51-197c (f) allows Appellate Court judges to preside over trial court matters withthepermissionoftheChiefJusticeoftheSupreme Court when ‘‘the public business may require it.’’13 The defendant has failed to advance any argument astowhythestatecouldnothavesoughttohaveJudge Espinosa preside over the proceedings or why such an attempt would have been futile. The defendant has accordingly failed to meet his burden to overcome the presumption that the state was unfairly prejudiced. We conclude, therefore, that the Appellate Court abused its discretion by deciding the appeal on the basis of an unpreservedissuebecausetherequirementsarticulated in Blumberg were not met.

Outcome: The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to considertheclaimraisedbythedefendantinhisappeal to that court.

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