State v. Ross

• Decision Date: 14 January 2005
• Docket Number: No. 17335.,17335.
• Citation: 863 A.2d 654,272 Conn. 577
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael B. ROSS.

863 A.2d 654

272 Conn. 577

STATE of Connecticut v. Michael B. ROSS.

No. 17335.

Supreme Court of Connecticut.

Argued January 5, 2005.

Decided January 14, 2005¹.

John Holdridge, assistant public defender, with whom was Lauren Weisfeld, senior assistant public defender, for the plaintiff in error (office of the chief public defender).

Harry Weller, supervisory assistant state's attorney, with whom were Kevin Kane, state's attorney, Jessica Probolus, special deputy assistant state's attorney, and, on the brief, Susan C. Marks, supervisory assistant state's attorney, for the defendant in error (state).

T.R. Paulding, Jr., for the defendant.

SULLIVAN, C.J., and NORCOTT, VERTEFEUILLE, ZARELLA, LAVERY, FOTI and DRANGINIS, Js.

SULLIVAN, C.J.

This writ of error is brought by the plaintiff in error, the office of the chief public defender of the state of Connecticut, to challenge the trial court's denial of its motion for permission to appear as next friend of the defendant, Michael B. Ross, and as a party in interest, an intervenor or amicus curiae in postconviction judicial proceedings in the three criminal cases against the defendant. We affirm the judgment of the trial court.

The record reveals the following procedural history. The defendant was charged in three cases with eight counts of capital felony in violation of General Statutes § 53a-54b. The trial court dismissed two counts for lack of territorial jurisdiction and, after a jury trial, the defendant was convicted of four counts of capital felony in violation of § 53a-54b (5) and two counts of capital felony in violation of § 53a-54b (6).² State v. Ross, 230 Conn. 183, 188, 194-95, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995) .... After a separate penalty phase hearing pursuant to General Statutes (Rev. to 1987) § 53a-46a, he was sentenced to death. The defendant appealed from the judgments to this court. We affirmed the defendant's convictions, but determined that certain evidentiary rulings by the trial court in the penalty phase had impaired the defendant's ability to establish a mitigating factor and, accordingly, we reversed the judgments imposing the death penalty. [State v. Ross], supra, at 286, 646 A.2d 1318. On remand, a second penalty phase hearing was held before a jury, which found an aggravating factor for each capital felony conviction and no mitigating factor. In accordance with the jury's findings, the court, Miano, J., imposed a death sentence on each count. State v. Ross, 269 Conn. 213, 223-24, 849 A.2d 648 (2004). The defendant again appealed from the judgments to this court, and we affirmed the sentences of death. Id., at 392, 849 A.2d 648.

Thereafter, on September 21, 2004, T.R. Paulding, Jr., an attorney, entered appearances in the three criminal cases against the defendant. His appearances were in lieu of the appearances by attorneys employed by the public defender's office. At the same time, Paulding sent a letter to the trial court, Clifford, J., indicating that the defendant intended to waive any further appeals or collateral attacks on his death sentences and that he wanted the court to set an execution date.³

The trial court held a hearing on October 6, 2004, at which it canvassed the defendant about his decision to waive further challenges to the death sentences. The defendant indicated that he had not authorized anyone other than Paulding to file legal proceedings on his behalf, that he was not under the influence of alcohol, drugs or medication of any kind, that he had not received any threats or promises, that he had discussed his desire to waive further legal proceedings with Paulding, and that he had no questions about the purpose of the hearing. Paulding indicated that the defendant had contacted him in February, 2004, regarding his desire to waive further proceedings and that they had spoken together on numerous occasions over the course of the year. Paulding also indicated that he had seen "no evidence whatsoever" that the defendant was incompetent and that he felt "very strongly" that the defendant understood the nature of the proceedings and was able to assist in his defense. Paulding stated that the defendant had come to his decision after considering the issue for a long period of time. The trial court noted that previous competency examinations had resulted in a determination that the defendant was competent and indicated that it saw no evidence to conclude otherwise. The court then set January 26, 2005, as the defendant's execution date.

On December 1, 2004, the plaintiff in error filed a motion to proceed in forma pauperis and a petition for writ of certiorari in the United States Supreme Court. The plaintiff in error represented in the filings that the defendant had refused to sign an affidavit of indigence in support of the motion because he was incompetent. The United States Supreme Court denied the motion on January 10, 2005.

Also on December 1, 2004, the plaintiff in error filed in the Superior Court a "motion for permission to appear as (1) `next friend' of [the defendant]; and (2) as a party in interest or as an intervener or as amicus curiae."⁴ The plaintiff in error alleged in its motion that it had standing to appear as the defendant's next friend because the defendant "was incompetent when he terminated the [plaintiff in error's] representation of him; because [the defendant] is presently incompetent; and because the [plaintiff in error] has had a significant relationship with [the defendant] for some seventeen years...." In addition to the motion for permission to appear, the plaintiff in error lodged with the court clerk a motion for stay of the defendant's execution pending a judicial determination as to whether the defendant is competent and a motion for stay of execution pending resolution of the pending consolidated litigation ordered by this court to determine whether Connecticut's death penalty system is racially discriminatory and therefore violates the state constitution and statutory law (consolidated litigation).⁵ Thereafter, the state filed a motion seeking a determination as to whether the defendant was competent to waive his rights to seek postconviction relief and whether his waiver was knowingly and voluntarily made. The court held a competency hearing on December 9, 2004. Because the trial court had not yet ruled on the plaintiff in error's motion to appear, the plaintiff in error attended the hearing only as an observer.

Paulding represented to the trial court at the December 9, 2004 hearing that he had first represented the defendant in 1995 or 1996 when the defendant was awaiting his second penalty phase hearing. The defendant indicated at that time that he wanted to proceed pro se and to stipulate to the existence of an aggravating factor. In May, 1995, he underwent a competency evaluation to determine whether he was capable of representing himself and was found competent. Because the state's attorney indicated that he would not engage in discussions with the defendant unless he was represented by standby counsel, Paulding agreed to take on that role. After extensive negotiations, the defendant and the state entered into a stipulation that an aggravating factor existed and no mitigating factor existed. The trial court would not allow the stipulation, however. Paulding stated at the December 9, 2004 hearing that the defendant's position had been consistent throughout the 1995 proceedings: Although he believed that a mitigating factor existed, he was willing to stipulate that one did not exist. If the trial court refused to allow the stipulation, however, then the defendant would allow the public defenders to represent him and to put on an aggressive defense at the penalty phase hearing.

Paulding stated that he next heard from the defendant in February, 2004. The defendant indicated at that time that he anticipated that this court would affirm his death sentences in the pending appeal and that he did not wish to challenge that determination in any way. Paulding told the defendant in July, 2004, that he would represent him. Paulding stated that he had spoken to the defendant in person and by telephone approximately twenty to thirty times between July, 2004, and the date of the December 9 hearing. Paulding stated that he and the defendant had had lengthy and detailed discussions about the case and that he had "never seen any indication of a lack of understanding or a lack of competence or cloudiness in [the defendant's] judgment." As an example, Paulding stated that the defendant was aware of the statutory time constraints on setting the date for the execution and wanted to arrange things so that he would not be executed until 2005. He agreed to allow the public defenders to file a motion for reconsideration of this court's decision affirming his death sentences in order to delay the proceedings to achieve that purpose.

Paulding also stated that the defendant had been informed in detail of all of his legal options, including participating in the consolidated litigation over the constitutionality of the state's death penalty scheme. The defendant clearly indicated that he did not want to pursue any of these options and that the petition for certiorari to the United States Supreme Court had been filed against his will.

Two days before the December 9, 2004 hearing, Paulding met with Paul Chaplin, a psychologist employed by the department of correction, who met regularly with the defendant between 1988 and 1992 and, after a gap between 1992 and 1999 when Chaplin and the defendant were assigned to different prisons, since 1999. Chaplin indicated that, since the execution date was set, either he or Thomas Latier, a psychiatric social worker, had met with the defendant every day. The defendant is taking several medications including Depo-Lupron to reduce his sex drive, and Klonopin and Wellbutrin, antianxiety medications....