State v. Dort, No. 34071.

• Citation: 138 Conn.App. 401,51 A.3d 1186
• Decision Date: 02 October 2012
• Docket Number: No. 34071.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Joel DORT.

138 Conn.App. 401

51 A.3d 1186

STATE of Connecticut

v.Joel DORT.

No. 34071.

Appellate Court of Connecticut.

Argued May 30, 2012.

Decided Oct. 2, 2012.

Robert E. Byron, special public defender, for the appellant (defendant).

Melissa Patterson, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michelle Bredefeld, assistant state's attorney, for the appellee (state).

ROBINSON, ALVORD and MIHALAKOS, Js.

ROBINSON, J.

The defendant, Joel Dort, appeals from the trial court's judgment of conviction, following a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(C) and burglary in the first degree in violation of General Statutes § 53a–101 (a)(2). On appeal, the defendant claims that the court erred in denying defense counsel's request for a second competency examination.¹ We conclude that the court erred by conducting an inadequate inquiry into the defendant's competence, and, therefore, reverse the defendant's conviction.

The jury could have reasonably found the following facts. In 2009, the defendant was discharged from his position as a computer consultant for XL Capital, an insurance and reinsurance company in Stamford. Approximately four months after the termination of his employment, the defendant entered XL Capital without proper authorization and waited for the victim, one of his supervisors, in her office. The defendant asked the victim for his job back, and she informed him that the job had been outsourced. The victim asked the defendant to leave, and when he did not, she threatened to call security. The victim reached for her telephone to call for assistance, and the defendant grabbed the telephone out of her hand and pointed a gun at her. The victim tried to escape from the defendant by stepping toward the door, and the defendant crushed the victim's hand in the doorway, grabbed the victim by the throat and slammed her head against the office wall. The victim broke free and ran out of her office. The defendant left the building and was later arrested and charged in a substitute long form information with burglary in the first degree in violation of § 53a–101 (a)(2), kidnapping in the first degree in violation of § 53a–92 (a)(2)(C) and strangulation in the second degree in violation of General Statutes § 53a–64bb (a).²

Pursuant to General Statutes § 54–56d,³ the court on November 13, 2009, ordered an examination to determine if the defendant was competent to stand trial. After the examination was completed and memorialized in a report dated December 16, 2009, the parties stipulated before the court that the defendant was competent to stand trial.⁴

On June 23, 2010, the court granted the defendant's motion for a speedy trial and scheduled jury selection to commence the following day. At the beginning of jury selection on June 24, 2010, defense counsel brought to the court's attention his concerns regarding the defendant's competency to stand trial, and asked for another competency examination to be performed. The defendant's counsel stated: “I have not had a recent chance to have a long discussion with my client, but I have had chances yesterday and on the telephone and this morning, and just so the court's aware, he was evaluated, competency evaluated in or about the first months after the incidents that gave rise to these charges occurred.” At that time the court noted that a § 54–56d (d) examination had been ordered. Defense counsel continued to address the court: “My understanding of the statute is that competency is not established forever. And that having been said, I know [the defendant] has had a competency evaluation, but there are things that he said to me and clear-cut advice that, both on the record and off the record, he continues not to follow when I give it to him. And these are fundamental bits of advice, Judge, might I add. So, for example, don't talk to anybody about your case or be advised that you're not obliged to incriminate yourself by making incriminating statements. And nonetheless, that has, in my view, occurred. And my largest problem at this point is that in the period of one day, since yesterday, I've been asked questions and I've observed a behavior that leads me to believe that he will continue to have difficulty and an inability to effectively communicate with counsel in such a way that it will hinder my ability to defend him, especially with regard to his understanding of the case and the facts and conditions that existed at the time that he feels are relevant to his defense. And for that reason, I would request at this juncture that the court reexamine him for competency at this juncture.”

In response, the court noted that a report had been filed approximately seven months previously that found the defendant competent to understand the charges against him and to assist in his defense. The court followed up by stating: “And I'm hearing that there's disagreements over following the advice of counsel and perhaps tactical issues as to whether or not certain issues and statements might be relevant or not relevant. I'm not—I mean, that happens in many, many cases. What else do you have to offer to the court?” Counsel for the defendant responded: “I've certainly been in those many types of cases where there's disagreements, Judge.... And just for the record, I can represent as an officer of the court, there's a clear distinction between [disagreement] and what's going on here. There's a fundamental misunderstanding regarding what can be put forward as a defense in this case. There's a fundamental misunderstanding of the seriousness of the charges in light of the defense. It's not only a disagreement, it's a situation where, without disclosing private communications between attorney-client, I am led to believe—and I make this statement as an officer of the court, that attempting to extrapolate the relevant information from my client in order for me to go forward with his defense is virtually impossible.”

In response, the court noted that defense counsel had met with his client on multiple occasions, and, yet, the first time the court heard of an issue of competency was when jury selection was to begin. Defense counsel agreed that that was a pertinent observation and then stated: “I think that in formulating a view of a client's inability to assist at trial, one needs to take into account, A, I'm not a psychiatrist, I'm just giving you a layperson's analysis of the reasons for why I believe this. And, B, I don't think it's—I think it's uncontested that these things and the behavior that exhibits—that attracts the concern can crop up at any time. And in fact, I know there have been cases—I don't have them in front of me, where a defendant may even be ordered to be examined in the middle of the trial.... So, that having [been] said, in the last day my client has said things and not been able to field information between he and I that I think is necessary to his proper understanding and his ability to further instruct me. He's indicated to me that there are things that he has withheld because he was waiting for trial—I don't know what that means, of course, Judge. But the point, is I don't know that he is stable enough or he understands enough about the seriousness of these charges for me to move forward and have him assist me in his own defense.... You know, I've advised my client about the elements of these charges ... that he faced last month or at the beginning of the trial, for example. And there's been things he's seized upon, including the fact that there's a weapon in this case or an alleged weapon in this, an alleged gun. And he's been informed that that's not whether the gun is operable or whether it's a rubber gun or it's made of wood—that does not constitute a defense. I cannot for the life of me extrapolate much more in the way of facts from him at this juncture.”

After defense counsel concluded his argument, the court stated: “I think the issue that's before the court is whether or not there's some substantial evidence that would give rise to a concern on the part of the court that the defendant is not competent at this time to proceed with trial. And I must say that I have not heard that. What I've heard is that there are concerns about communications, there's some fundamental misunderstandings as to the seriousness of the charge.... I've read the December 16 [2009] report from the three health care providers who conducted the competency examination, and, in light of that finding, the gentleman was found competent. I have not heard any new, substantial evidence. In fact, I haven't heard any evidence that would give rise to a concern that their findings are no longer accurate. So, at this point, I will deny the request.”

After the court denied the motion, defense counsel asked if the defendant could address the court. The court responded by saying that the defendant could bring anything to the court's attention through his counsel. Defense counsel followed up by stating: “It's a request that's based on following up, based on what Your Honor said, and the request is that he be able to express that to you himself, not from counsel.” When the court questioned what defense counsel meant by that statement, defense counsel noted that the court had made a determination on the competency issue and that the defendant “believes that there's other bases for that and wishes to convey that to the court himself.” The court responded by stating that anything the defendant wanted to apprise the court of must be done through his counsel. Defense counsel did not address the issue of competency again.

The defendant was tried and found guilty of first degree burglary and first degree kidnapping. The court sentenced him to ten years imprisonment, with seven years of special parole. This appeal followed.

“We begin with the undisputed principle that the ... conviction of an accused...