State v. Connor

• Decision Date: 16 September 2014
• Docket Number: AC34970
• Court: Connecticut Court of Appeals
• Parties: STATE v. CONNOR

STATE v. CONNOR

AC34970

COURT OF APPEALS OF THE STATE OF CONNECTICUT

September 16, 2014

CONCURRENCE

BEAR, J., concurring and dissenting. I agree with the majority that the judgment of the trial court should be reversed. I write separately, however, because I disagree with much of the majority opinion. I disagree primarily on the ground that our Supreme Court's mandate, set forth in its decision and its remand instructions in State v. Connor, 292 Conn. 483, 973 A.2d 627 (2009), was directed solely to Judge Espinosa,¹ who was the judge who had conducted the defendant's jury trial, and, with the required permission of the Chief Justice, still may be able to act in accordance with the remand instructions. Although Judge Espinosa began the hearings that were necessary to follow our Supreme Court's remand instructions, she then was elevated to the Appellate Court,² and the Superior Court assigned Judge Schuman to continue the hearings to carry out the remand instructions. Despite Judge Schuman's efforts, because he had not conducted the defendant's criminal trial and had not reviewed the defendant's relevant medical records, he was unable to make the findings that were required by the Supreme Court's remand instructions.

The defendant, Jeffrey T. Connor, has appealed from the trial court's judgment after remand denying him a new trial. Judge Schuman set forth the following in his decision: "On May 1, 2006, a jury convicted the defendant of kidnapping in the first degree, robbery in the third degree, robbery involving an occupied motor vehicle, and larceny in the third degree. Following the jury trial, the trial court, Espinosa, J., conducted a hearing and concluded that the defendant had violated the conditions of probation previously imposed on him in connection with a prior, unrelated conviction. The defendant represented himself at both proceedings. The court revoked the defendant's probation and sentenced the defendant to three years of imprisonment as a result of the violation. The court then sentenced the defendant on the jury case to thirteen years consecutive to the three years for violation of probation, for a net effective sentence of sixteen years.

"According to the Supreme Court, the jury could reasonably have found the following facts supporting the convictions on the substantive criminal charges. 'On February 24, 1997, [defendant's former wife Marsha] Viklinetz was operating her vehicle near her place of employment in East Hartford. While stopped at a stop sign, she observed the defendant on the sidewalk to her right. Viklinetz was surprised to see the defendant because he did not live or work in the area, and she previously had obtained a restraining order against him. When she saw the defendant approaching her car, Viklinetz locked the doors and rolled up the windows. Thedefendant, however, punched his fist through the driver's side window and forced his way into the vehicle, pushing Viklinetz into the passenger seat and gaining control of the vehicle. The defendant proceeded onto a highway, where he reached speeds of up to ninety miles per hour. At times, the defendant was irrational, threatening to kill Viklinetz and himself by driving the car off the road. At other times, he was calm and told Viklinetz that he loved her and that they should reconcile. The defendant continued to drive for approximately thirty minutes, at which time the vehicle began to run low on fuel. The defendant stopped at a gas station in Berlin. At that point, Viklinetz got out of the vehicle and attempted to take the keys from the defendant. After a brief struggle, the defendant jumped into the vehicle alone and drove away. Viklinetz ran into the gas station and contacted the police. Her car eventually was recovered in New Britain.' [Id., 488-89].

"The defendant appealed. On July 14, 2009, the Supreme Court rendered its decision. The court found that the trial court did not violate the defendant's constitutional right to the assistance of counsel at the criminal trial because, in accordance with the law at the time, the defendant was found competent to stand trial and therefore he was competent to represent himself. Id., 505-25 (citing Godinez v. Moran, 509 U.S. 389 [113 S. Ct. 2680, 125 L. Ed. 2d 321] [1993], and State v. Day, 233 Conn. 813, 661 A.2d 539 [1995], overruled in part by State v. Connor, 292 Conn. 483, 528 n.29, 973 A.2d 627 [2009]). The court observed, however, that in Indiana v. Edwards, 554 U.S. 164 [128 S. Ct. 2379, 171 L. Ed. 2d 345] (2008), a case decided after oral argument in the defendant's appeal, the United States Supreme Court held that the sixth and fourteenth amendments, which generally guarantee a criminal defendant the right to self-representation, permit a state court to deny that right to a defendant who, though minimally competent to stand trial with the assistance of counsel, lacks the mental capacity to represent himself at trial. Our Supreme Court accordingly exercised its supervisory powers and remanded the case to this court to determine whether the defendant was competent at the time of trial to conduct the trial proceedings by himself. State v. Connor, supra, 292 Conn. 525-30."

After analyzing our Supreme Court's decision setting forth the terms of its remand instructions, I conclude that it contemplated that only Judge Espinosa could conduct the proceedings on remand, because, inter alia, it referred to the likelihood that she would have to apply her recollection of the criminal pretrial and trial proceedings in determining the defendant's competency to represent himself at his criminal trial. In a footnote, our Supreme Court stated: "Of course, the issue that the trial court must address on remand concerns the defendant's competency to represent himself at the time that the trial took place. Thus, the trial courtmay elect to order an evaluation of the defendant if it determines that such an evaluation may be useful in ascertaining the defendant's ability to proceed without counsel at that time. Furthermore, if the defendant were to persist in refusing to cooperate with any such evaluation, 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. No new evaluation was ordered by either Judge Espinosa or Judge Schuman, and neither of them directly reviewed the defendant's existing medical records.

The Supreme Court analyzed the impact of Edwards on the defendant's right to represent himself at trial, and it set forth and explained Judge Espinosa's duties on remand, as follows: "We now turn to the issue of whether the defendant is entitled to a new trial because he lacked the ability, due to mental illness or incapacity, to perform the basic functions necessary for the trial of his case. We conclude that the case must be remanded to the trial court, Espinosa, J., for a resolution of this issue.

"As we previously have explained, the United States Supreme Court recognized in Edwards that 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-representation . . . . Indiana v. Edwards, supra, 554 U.S. 176. The court therefore concluded that the [c]onstitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the [c]onstitution permits [s]tates to insist [on] representation by counsel for those competent enough to stand trial under Dusky [v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)] but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. [Indiana v. Edwards, supra], 177-78." (Internal quotation marks omitted). State v. Connor, supra, 292 Conn. 525.

The court continued: "We agree with Edwards that, in light of 'the different capacities needed to proceed to trial without counsel, there is little reason to believe that [the] Dusky [competency standard] alone is sufficient' for determining whether a mentally ill or incapacitated defendant who, although competent to stand trial with the aid and assistance of counsel, also is competent to represent himself at that trial. Id., 177. As the court explained, '[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant'sability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.' . . . Id., 176; see also Massey v. Moore, 348 U.S. 105, 108, 75 S. Ct. 145, 99 L. Ed. 135 (1954) ('[o]ne might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel'); Pickens v. State, 96 Wis. 2d 549, 567, 292 N.W.2d 601 (1980) ('The standard for determining competency to stand trial is whether one is able to understand the proceedings against him and to assist in his own defense. . . . This test assumes [that] the defendant will have representation and that he will be required only to assist in his defense. Certainly more is required [when] the defendant is to actually conduct his own defense and not merely assist in it.' . . .), overruled in part on other grounds by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). Simply put, '[i]t is one thing for a defendant to have sufficient mentation to be able to follow the trial proceedings with the aid of a lawyer, and another to be able to represent himself . . . .' Brooks v. McCaughtry, 380 F.3d 1009, 1011 (7th Cir. 2004), cert. denied sub nom. Brooks v....