State v. Connor, No. 18099.

Citation292 Conn. 483,973 A.2d 627
Decision Date14 July 2009
Docket NumberNo. 18101.,No. 18099.
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. Jeffrey T. CONNOR.

Katharine S. Goodbody, special public defender, for the appellant in Docket No. SC 18099 (defendant).

Glenn W. Falk, special public defender, for the appellant in Docket No. SC 18101 (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anne Mahoney, senior assistant state's attorney, for the appellee in Docket Nos. SC 18099 and SC 18101 (state).



A jury found the defendant, Jeffrey T. Connor, guilty of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(C), robbery in the third degree in violation of General Statutes § 53a-136, robbery involving an occupied motor vehicle in violation of General Statutes § 53a-136a, and larceny in the third degree in violation of General Statutes (Rev. to 1997) § 53a-124(a)(1). Following the jury verdict, the trial court, after a hearing, found that the defendant had violated the conditions of probation that previously had been imposed on him in connection with a prior, unrelated conviction.1 In light of that finding, the court revoked the defendant's probation and sentenced him under General Statutes § 53a-32 to three years of imprisonment.

Thereafter, the trial court rendered judgment in accordance with the jury verdict in the criminal case and sentenced the defendant to a total effective prison term of thirteen years, to run consecutively to the three year sentence that had been imposed in the probation violation case.

On appeal,2 the defendant, who represented himself both at the trial of his criminal case and at the hearing in his probation violation case, claims that the trial court improperly found that he was competent to waive his right to counsel in both of those cases. We agree with the defendant that he is entitled to a new probation violation hearing because the trial court failed to ensure that the defendant had waived his right to counsel knowingly, intelligently and voluntarily in the probation violation case. With respect to the defendant's claim concerning his self-representation in the criminal case, we reject his contention that the trial court violated his constitutional right to counsel by permitting him to represent himself in the trial of that case. We also conclude, however, that, in accordance with the recent decision of the United States Supreme Court in Indiana v. Edwards, ___ U.S. ___, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), and contrary to prior decisions of this court, a mentally ill or mentally incapacitated defendant who is found competent to stand trial is not necessarily competent to represent himself at trial, and, therefore, the trial judge must determine whether such a defendant is, in fact, competent to represent himself during the trial proceedings. Because the trial court in the present case was bound by then controlling precedent to permit the defendant to represent himself in view of the fact that he had been found competent to stand trial, we remand the criminal case to the trial court for a determination of whether the defendant was sufficiently capable, despite any mental illness or incapacity, to defend himself without the aid of counsel. If the court finds that the defendant was not competent, due to mental illness or other mental incapacity, to try the case himself, then the defendant must be granted a new trial in the criminal case.

We commence our review of the defendant's claims by setting forth the facts and procedural history relevant to those claims. In 1994, the defendant was convicted of sexual assault in the third degree and sentenced to three years in prison, execution suspended, and three years probation with special conditions, including the requirement that he successfully complete a sex offender treatment program. He also was required to report to his probation officer and to notify her in the event that he was charged with any criminal offense.

While on probation, the defendant abducted his former wife, Marsha Viklinetz, which led to the charges of which he was found guilty in the criminal case. On the basis of the evidence adduced by the state at his trial in the criminal case, the jury reasonably could have found the following facts. On February 24, 1997, 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. The defendant, 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.

In the spring of 1997, the defendant was charged with violating the conditions of probation that had been imposed in connection with his 1994 conviction for sexual assault in the third degree. Specifically, he was charged with failure to complete his sex offender treatment program, failure to report for scheduled meetings with his probation officer and failure to report to his probation officer the criminal charges stemming from the February 24, 1997 incident. For reasons that are not clear from the record, the defendant was not arrested, either in connection with the criminal case or the probation violation case, until October, 2002.

Following the defendant's arrest, the state proceeded first on the criminal case. The extensive pretrial proceedings in the case reveal repeated attempts by the court to ascertain the defendant's competency both to stand trial—attempts that were complicated by the defendant's refusal to cooperate with court evaluation teams— and to discharge his court-appointed counsel and to represent himself. These proceedings began on October 8, 2003, when the public defender representing the defendant at the time, M. Fred DeCaprio, expressed concern that the defendant, who recently had suffered a stroke that had rendered him unable to walk,3 might not be competent to stand trial. At that time, however, the trial court, Solomon, J., took no action with respect to the issue of the defendant's competency.

Thereafter, DeCaprio was replaced as the defendant's counsel by a second public defender, R. Bruce Lorenzen. On June 2, 2004, however, the defendant requested that Judge Solomon discharge Lorenzen because, according to the defendant, Lorenzen had not been representing him adequately. In particular, the defendant claimed to have learned that several detainers had been lodged against him, and he was not satisfied with Lorenzen's explanation that Lorenzen had been unable to confirm the existence of any such detainers. The defendant also explained that he had suffered a stroke, and he further informed the court that "the left side of my brain is not working as it should be. . . ." The assistant state's attorney indicated that, under the circumstances, the court "ha[d] . . . no choice but to order" a competency evaluation. Judge Solomon denied the defendant's request for new counsel, explaining that the defendant had failed to provide any information supporting his request that Lorenzen be discharged. Judge Solomon also ordered a competency evaluation of the defendant pursuant to General Statutes § 54-56d.4

The defendant next appeared in court on July 15, 2004. The defendant was represented by Sara Bernstein, a public defender who was standing in for Lorenzen. Bernstein informed Judge Solomon that the evaluation team had been unable to conduct its assessment of the defendant because the defendant had refused to cooperate with the team. Judge Solomon advised the defendant, who also refused to communicate with the court at the hearing, that it would be in his best interest to cooperate with the evaluation team. Judge Solomon then ordered that the team make another attempt to examine the defendant in accordance with § 54-56d.

Judge Solomon held a hearing on August 19, 2004, for the purpose of ascertaining the status of that evaluation. The assistant state's attorney reported that the defendant had persisted in his refusal to cooperate with the examination team. The defendant, however, denied that he had refused to speak to the team members. The defendant did acknowledge that he had stopped eating for a time, but he further indicated that he had started to eat again. Although the assistant state's attorney suggested that the defendant ought to be placed on suicide watch by the department of correction, she also stated that he appeared to be "oriented to time and place," that his conduct reflected a "series of power struggles between [the] defendant and whomever else he's dealing with," including counsel and the court, and that he appeared competent to stand trial. Lorenzen, who represented the defendant at the hearing,...

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