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STATE OF CONNECTICUT v. MAURICE FRANCIS
(AC 35753)
Gruendel, Lavine and Alvord, Js.
Argued December 3, 2013—officially released March 18, 2014
(Appeal from Superior Court, judicial district of
Hartford, Gold, J. [competency determination]; Dewey,
J. [motions to suppress, for competency evaluation;
judgment].)
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Donna Mambrino and Richard J. Rubino,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
ALVORD, J. The defendant, Maurice Francis, appeals
from the trial court’s judgment of conviction, rendered
after a jury trial, of murder in violation of General Stat-
utes § 53a-54a. On appeal, the defendant claims that
the court improperly (1) denied his motion to suppress
statements that he had given police officers in the
absence of Miranda1 warnings; (2) (a) determined in
a pretrial ruling that he was competent to stand trial,
and (b) denied his defense counsel’s requests for an
additional competency evaluation made during the trial
proceedings; (3) forced him to choose between his right
to representation by counsel and his right to testify on
his own behalf; (4) dismissed a juror during the trial;
and (5) charged the jury in supplemental instructions
on intent. We disagree and affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. In November, 2008, the defendant and his girl-
friend, Tashima Reddick, lived together in Reddick’s
apartment at 47 Berkeley Drive in Hartford. They began
dating ten or eleven months earlier, and the defendant
immediately moved in with Reddick. During the course
of their relationship, Reddick’s demeanor changed from
being happy and outgoing to being unhappy and with-
drawn. She avoided the family gatherings that she had
attended in the past. At work, her supervisor noticed
bruising and other unexplained injuries on her body.
On November 1, 2008, sometime between 8:30 a.m.
and 8:45 a.m., Beverly Copeland, who lived diagonally
across the street from Reddick’s apartment, got into
her car and was preparing to leave when she noticed
unusual activity on the front lawn at 47 Berkeley Drive.
A black male was standing in the grassy area and picked
up what Copeland originally thought to be a pile of
clothing. Copeland quickly determined that the male
had picked up a body and was carrying a female over
his shoulder. After he had taken a few steps, he dropped
the body to the ground and began dragging her through
the grass and across the street to a silver Volvo station
wagon. The male placed the female in the front passen-
ger seat of the vehicle and then drove past Copeland’s
vehicle. Copeland could not see the male’s face as he
drove alongside her vehicle because he was looking
at his passenger and was facing away from Copeland.
Copeland did, however, write down the license plate
number of the Volvo. According to the records of the
Department of Motor Vehicles, the defendant was the
owner of that 1998 Volvo station wagon.
The defendant had purchased the 1998 Volvo in Octo-
ber, 2008, from Garth Wallen at Sparks Motor Sales,
LLC, in Hartford. Between 8:30 a.m. and 9 a.m. on
November 1, 2008, the defendant called Wallen, who
was then at home, and they agreed to meet at the dealer-
ship at 9:30 a.m. The defendant complained that he
had been having problems with the Volvo, and Wallen
offered the option of returning the 1998 Volvo in
exchange for another vehicle. When Wallen arrived at
the dealership, the defendant already was waiting for
him by the locked gate. The defendant was standing
outside of his vehicle, and Wallen noticed a female in
the front passenger seat. Wallen could see that her seat
belt was fastened.
After Wallen unlocked the gate, the defendant drove
his vehicle into the lot and parked to the side of the
building. At some point during the day, Wallen secured
a 1999 Volvo station wagon for the defendant. The
defendant transferred his license plate from the 1998
Volvo to the 1999 Volvo. Wallen noticed, as the defen-
dant was making the plate transfer, that the defendant
had positioned the two Volvos passenger side to passen-
ger side. Wallen did not notice how or when the female
passenger left the 1998 Volvo. Although the defendant
had been at the dealership from early morning until
nearly 4 p.m., Wallen never spoke with the female pas-
senger, nor did he see her leave the 1998 Volvo at any
point in time during the day. After the defendant left
the dealership, he then called Wallen at 4:44 p.m. to
report that he liked the 1999 Volvo much better than
the 1998 Volvo. No further calls were made from the
defendant’s cell phone to Wallen on that day.
Later that evening, two firefighters from the Hartford
Fire Department responded to a 911 call placed by
the defendant at 10:51 p.m. They were dispatched to
Reddick’s apartment. When they arrived at 10:57 p.m.,
the defendant was standing outside the building, and
he directed them to the second floor. Reddick was in
the bathtub; she was naked and the bathtub contained
no water. Although there appeared to be numerous
wounds on her body, there was no blood in the bath-
room or in the bathtub, and the firefighters did not wipe
any blood off her body. After they removed Reddick
from the bathtub, one of the firefighters performed car-
diopulmonary resuscitation until the emergency medi-
cal technicians arrived. Reddick was pronounced dead
at 11:20 p.m.
Detectives Richard Salkeld and Seth Condon, with
the Hartford Police Department, also were dispatched
to the scene and arrived at approximately 11:30 p.m.
They saw the defendant outside Reddick’s apartment
and wanted to question him about the circumstances
surrounding his discovery of Reddick’s body. Before
they asked any questions, however, the defendant com-
plained that he was having chest pains and that he
needed to go to a hospital. Shortly thereafter, the defen-
dant was taken by ambulance to a hospital. He was
discharged early in the morning of November 2, 2008,
and was transported by a police cruiser to the police
station. When the defendant arrived at the station, he
agreed to speak with Salkeld and Condon about the
events of the previous day. At that point in time, the
police did not know the cause or manner of Reddick’s
death. The detectives did not provide the defendant
with Miranda warnings because he was not under
arrest.
During his interview at the police station, the defen-
dant gave the detectives the following account of his
activities on November 1, 2008. At approximately 8 a.m.,
he and Reddick left her apartment, and he drove them
to Sparks Motor Sales, LLC, in the 1998 Volvo. The
defendant performed ‘‘odd jobs’’ at the dealership dur-
ing the day while Reddick sat in the car. Reddick never
left the vehicle while they were at the dealership,
although the defendant did bring her five bottles of
water during the course of the day. When they left the
dealership at approximately 5 p.m., Reddick switched
from the front passenger seat of the 1998 Volvo to the
front passenger seat of the 1999 Volvo. They arrived at
Reddick’s apartment about fifteen minutes later.
Reddick stayed at the apartment, and the defendant left
at 5:20 p.m. to return to the dealership to ‘‘clean up.’’
He was supposed to meet with Wallen later that evening
at Wallen’s home in East Hartford, so he left the dealer-
ship at 6:20 p.m. for that purpose. Although the defen-
dant could not remember the street name or house
number of Wallen’s address, he waited in East Hartford
for Wallen until 10:30 p.m. Wallen never showed up.
The defendant called Wallen’s cell phone number sev-
eral times that evening in an attempt to reach him, but
was unsuccessful. He left East Hartford at 10:30 p.m.
and returned to Reddick’s apartment. When he arrived,
the door to the apartment was open and all of the lights
were on. He entered the apartment, found Reddick in
the bathtub and called 911.
Susan Williams, an associate medical examiner, per-
formed the autopsy on Reddick’s body on November
3, 2008. In her report, Williams preliminarily noted that
Reddick, who was twenty-nine years old, had black
curly hair with braided, long black extensions.
According to Williams, the body had multiple injuries on
the head, shoulders, arms, legs and back, approximately
seventy-five in total, which consisted of several fresh
incised wounds, several healing incised wounds, abra-
sions, contusions, hemorrhages and scars. The fresh
incised wounds were caused by a sharp instrument,
probably a knife or scissors. The injuries were not con-
sidered to be stab wounds, because they were wide on
the skin rather than deep into the skin. None of the
wounds penetrated an internal organ or major artery.
No single wound caused her death.2 The number of
injuries resulted in major blood loss, and she ‘‘bled out.’’
The cause of death was determined to be multiple sharp
force injuries, and the manner of death was determined
to be homicide. Williams was unable to determine an
exact time of death.
During the course of the investigation, Hartford
police officials interviewed witnesses and collected evi-
dence from the crime scene. Ramone Baez, an investiga-
tor with the department, collected braid extensions
from the lawn in front of Reddick’s apartment and
swabbed bloodstains on the doors and door frames in
the apartment. Detective Claudette Kosinski processed
the defendant’s 1998 and 1999 Volvo station wagons.
She collected a Poland Springs water bottle under the
front passenger seat of the 1998 Volvo and took photo-
graphs of grass, leaf and dirt debris on the floor of the
front passenger’s side of the 1998 vehicle. Additionally,
Kosinski retrieved a hair strand and swabbed a blood-
like stain from the same areas in the 1998 Volvo.3 Detec-
tive William J. Siemionko reviewed telephone records
for the cell phone numbers of Wallen and the defendant.
He determined that, contrary to the defendant’s
account, the defendant did not place any calls to Wallen
after 4:44 p.m. on November 1, 2008, and that the defen-
dant had not called Reddick’s cell phone number the
entire day.
Following the criminal investigation, the defendant
was arrested on June 26, 2009. Prior to trial, defense
counsel made oral and written motions for competency
evaluations pursuant to General Statutes § 54-56d.4 Ini-
tially, the court found the defendant incompetent to
stand trial but restorable to competency. On May 16,
2011, the court, Gold, J., found the defendant competent
to stand trial and assist in his own defense. On Septem-
ber 28, 2011, defense counsel orally requested an addi-
tional pretrial competency examination. The court,
Alexander, J., granted the motion, and a hearing was
held on January 6, 2012. Judge Alexander found that the
defendant was competent to stand trial. Approximately
two weeks later, jury selection began, and the defen-
dant’s trial commenced on February 6, 2012.
On February 10, 2012, after the state rested, defense
counsel orally requested another competency evalua-
tion, which was denied by the court, Dewey, J. That
same day, one of the jurors handed a note to the court
clerk with a question regarding certain evidence that
had been presented during the trial. After the court
questioned the juror in the absence of the remaining
jurors, the court excused that juror and he was replaced
with an alternate juror. Immediately thereafter, the
defendant testified on his own behalf. The parties rested
and counsel made their closing arguments.
The next court day, February 14, 2012, the court
charged the jury. The court provided a copy of its writ-
ten instructions to the jury as a court exhibit. After
the jury requested and received a playback of certain
portions of a witness’ testimony, the court received
another note from the jury late that afternoon
requesting clarification of the court’s instruction on
intent. After discussing the note with counsel, the court
told the jurors that it would provide a clarification on
intent the next morning.
On February 15, 2012, the court presented counsel
with its proposed supplemental instruction on intent.
After further discussion on the record, the court called
the jury into the courtroom and gave its supplemental
instruction. Shortly thereafter, the court received
another note from the jury that presented a hypothetical
situation and asked if ‘‘intent to commit murder’’ could
be found under those circumstances. The court dis-
cussed the note with counsel and offered its proposed
response to the jury. Defense counsel stated that he
would like a more specific and comprehensive supple-
mental instruction on intent. The court determined that
a less expansive supplemental instruction would be
sufficient. That same day, after the court had given the
additional supplemental instruction on intent, the jury
returned its verdict finding the defendant guilty of the
crime of murder. This appeal followed.
I
The defendant’s first claim is that the court improp-
erly denied his motion to suppress the statements that
he had given Salkeld and Condon, in the absence of
Miranda warnings during the interview, on November
2, 2008. The defendant argues that he was taken into
custody when a search warrant was executed on him
while he was being interviewed at the police station.
The search warrant required him to give a buccal DNA
sample and to surrender his clothing for testing. The
defendant’s position is that the execution of the search
warrant converted the interview into a custodial interro-
gation. Although he did not confess to the crime, he
claims that the state presented evidence at trial to show
that his statements were untrue, thereby demonstrating
a ‘‘consciousness of guilt.’’
At the time the court heard testimony on the defen-
dant’s motion to suppress, the trial already had com-
menced and the state intended to present the
defendant’s statements through its next witness.
Accordingly, the court, after hearing the testimonial
evidence outside of the presence of the jury, found that
the defendant was not in custody at the time he made
the statements to Salkeld and Condon, and denied the
motion to suppress. The court’s reasoning with respect
to its conclusion that the defendant was not in custody
was provided later in the court’s memorandum of deci-
sion issued on September 7, 2012.
In its memorandum of decision, the court made the
following factual findings: (1) at the time of the inter-
view, the detectives had not yet determined a cause of
death for Reddick; (2) Salkeld advised the defendant
that he was free to leave the police station; (3) the
defendant was not threatened or restrained, and the
detectives did not make any offers or promises in return
for his statements; (4) the defendant appeared to under-
stand the proceedings, and there was no reason to
believe that he did not understand the proceedings; (5)
the defendant provided the detectives with his name,
address, social security number, information with
respect to his car, and cell phone information for his
and Reddick’s phones; (6) the defendant never asked
to leave the police station during the interview, nor did
he request that the detectives stop questioning him; (7)
the defendant did not complain of any physical ailments
during the interview; and (8) the defendant was allowed
to leave the police station and was not arrested until
more than seven months after he had given his state-
ments. The court made no factual findings, or any other
determinations, with respect to the execution of the
search warrant on the defendant while he was at the
police station.
‘‘Two threshold conditions must be satisfied in order
to invoke the warnings constitutionally required by
Miranda: (1) the defendant must have been in custody;
and (2) the defendant must have been subjected to
police interrogation. . . . [A]lthough the circum-
stances of each case must certainly influence a determi-
nation of whether a suspect is in custody for purposes
of receiving Miranda protection, the ultimate inquiry
is simply whether there is a formal arrest or restraint
on freedom of movement of the degree associated with
a formal arrest. . . . Further, the United States
Supreme Court has adopted an objective, reasonable
person test for determining whether a defendant is in
custody. . . . Thus, in determining whether Miranda
rights are required, the only relevant inquiry is whether
a reasonable person in the defendant’s position would
believe that he or she was in police custody of the
degree associated with a formal arrest. . . .
‘‘Furthermore, we note that [n]o definitive list of fac-
tors governs a determination of whether a reasonable
person in the defendant’s position would have believed
that he or she was in custody. Because, however, the
Miranda court expressed concern with protecting
defendants against interrogations that take place in a
police-dominated atmosphere containing inherently
compelling pressures which work to undermine the
individual’s will to resist and to compel him to speak
where he would not otherwise do so freely . . . cir-
cumstances relating to those kinds of concerns are
highly relevant on the custody issue.’’ (Internal quota-
tion marks omitted.) State v. Jackson, 304 Conn. 383,
416–17, 40 A.3d 290 (2012). In determining whether a
reasonable person in the defendant’s position would
have believed that his freedom of movement was
restrained to the degree associated with a formal arrest,
‘‘our courts often have utilized the ‘free to leave’ test,
pursuant to which Miranda warnings are required only
if, under the circumstances, a reasonable person would
believe that he or she was not free to leave the scene
of the interrogation.’’ State v. Hasfal, 106 Conn. App.
199, 206, 941 A.2d 387 (2008). ‘‘The ‘free to leave’ test
is a good fit for a Miranda inquiry when the police
interrogate someone at a police station . . . .’’ (Cita-
tions omitted.) Id., 206–207.
‘‘The defendant bears the burden of proving custodial
interrogation. . . . The trial court’s determination of
the historical circumstances surrounding the defen-
dant’s interrogation are findings of fact . . . which will
not be overturned unless they are clearly erroneous.
. . . In order to determine the [factual] issue of cus-
tody, however, we will conduct a scrupulous examina-
tion of the record . . . in order to ascertain whether,
in light of the totality of circumstances, the trial court’s
finding is supported by substantial evidence. . . . The
ultimate inquiry as to whether, in light of these factual
circumstances, a reasonable person in the defendant’s
position would believe that he or she was in police
custody of the degree associated with a formal arrest
. . . calls for application of the controlling legal stan-
dard to the historical facts [and] . . . therefore, pre-
sents a . . . question of law . . . over which our
review is de novo.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Jackson, supra, 304
Conn. 417.
The defendant, citing United States v. Turner, 761
A.2d 845 (D.C. 2000), claims that he was taken into
custody when the search warrant was executed on him
while he was being questioned. Any statements that he
gave after the execution of the search warrant, the
defendant argues, were involuntary because his
Miranda rights had not been read to him at that time.
The defendant claims that he would not have believed
that he was free to leave the police station when he
was required to give samples for DNA analysis.
Although the defendant claims that the search war-
rant was executed on him during the questioning by
the detectives, the record is unclear. The search warrant
was not submitted as an exhibit during the suppression
hearing. During that hearing, Salkeld testified that he
could not recall the exact time that he and Condon
began speaking with the defendant on the morning of
November 2, 2008. Salkeld also could not remember
whether the search warrant was executed by Baez
before or after the interview. He said that he thought
that the defendant’s interview lasted between fifteen
minutes and one hour. During cross-examination,
defense counsel showed Salkeld a copy of Baez’ report.
Salkeld acknowledged that the report indicated that the
defendant still was being interviewed at 4:55 a.m. and
that the execution of the search warrant appeared to
have taken place at 5:05 a.m.5
Significantly, it never was determined if the interview
was in progress at 4:55 a.m. or if it had nearly concluded
at that time. Moreover, there is nothing in the record
that indicates which statements, if any, were made after
the execution of the search warrant. Further, there is
no testimony or other evidence regarding what was said
or represented to the defendant at the time the search
warrant was executed. With this record, we do not
know, without speculation, the factual circumstances
under which the buccal swab was taken or the clothing
tested in order to determine whether the defendant
then was in custody.
As previously discussed, it is the defendant’s burden
to prove custodial interrogation. State v. Jackson, supra,
304 Conn. 417. The defendant has failed to meet his
burden in this case. Nothing in the record persuades
us that the trial court’s factual findings were clearly
erroneous or that its application of the law to the facts
was improper. We therefore conclude that the court
properly denied the defendant’s motion to suppress the
oral statements that he gave to Salkeld and Condon on
November 2, 2008.
II
A
The defendant’s next claim is that Judge Gold, in his
May 16, 2011 ruling, improperly determined that the
defendant was competent to stand trial.6 The defendant
argues that Judge Gold, in concluding that he was com-
petent, improperly relied on his refusal to participate
in the competency interview as an indication that the
defendant had assessed the situation and determined
that it was to his advantage to decline to participate.
The defendant claims that by relying on this factor, the
court’s ‘‘use of [the defendant’s] invocation of his right
to remain silent as evidence of competency violated
due process.’’
At the May 16, 2011 competency hearing, Julie Jacobs,
a forensic monitor at Connecticut Valley Hospital, testi-
fied that she was assigned to work on the defendant’s
case when he was admitted to the hospital in December,
2010. Jacobs testified that she was unable to prepare
a formal competency evaluation of the defendant for
the May 16, 2011 hearing because the defendant ‘‘chose
not to engage’’ in the process. She testified that the
defendant told her that he refused to participate in the
evaluation because she had evaluated him in the past
and found him to be competent. Because the defendant
chose not to meet with Jacobs, she testified that the
treatment team reached its competency conclusion on
the basis of the defendant’s treatment record, which
included his medical record, progress notes, group
notes, interviews with the defendant during his hospital-
ization and his previous evaluation. The team concluded
that the defendant had the capacity to assist counsel
if he chose to do so and that he had a rational and
factual understanding of the charges against him, basic
court procedures and personnel.
At the conclusion of the testimony at the May 16,
2011 hearing, defense counsel argued that the defendant
had not been restored to competency. During his argu-
ment to the court, defense counsel expressed his belief
that the hospital should have replaced Jacobs with
another evaluator when the defendant refused to meet
with her: ‘‘[I]t concerns me that they didn’t make any
attempt to get a different person to come and evaluate
him in preparation of today’s hearing knowing full well
that he would refuse to meet with Ms. Jacobs, and it’s
not her fault. I mean, he has it in his head that she’s
prejudged him. He’s not going to meet with her.’’ The
prosecutor, relying on the evidence presented at the
hearing, stated: ‘‘[The defendant’s] an intelligent individ-
ual. He knows it, and he knows how to manipulate the
system, and that’s exactly what he’s doing.’’
Judge Gold found the defendant competent to stand
trial. In reaching that determination, Judge Gold stated:
‘‘[The defendant’s] decision not to participate in a for-
mal evaluation process, as had been the hope of [the
Whiting Forensic Division of Connecticut Valley Hospi-
tal], I think is volitional, and it is behavior that, in the
court’s opinion, evidences the fact that [the defendant]
is an individual who makes decisions based on what
he perceives to be the most productive course of action
available to him. I believe that [the defendant] refused to
participate in the interview because he felt that Whiting,
having—or Ms. Jacobs or Mr.—or Dr. [Craig] Burns
having already found [him] competent would find him
competent again. So, he said, I’m not going to meet
with them again.
‘‘Well, that shows a fairly high and a fairly sophisti-
cated level of assessment of the likelihood that a doctor
will change his or her opinion, and I think he said no
to those people because he knew the end result would
be the same, or—well, let me take that back because
that’s unfair to the doctors who may have changed
their opinion. But he thought that they wouldn’t, and
therefore it was a futile effort, so he refused to par-
ticipate.
‘‘Of course, he dangled in front of Ms. Jacobs and
Dr. Burns the option of letting someone else interview
him because he was not of the opinion that those other
people would come to the same conclusion. So, he was
willing to meet with the defense expert because he
liked what the defense expert had to say, and he may
have been willing to meet with someone else. But it’s
not the defendant who has the choice as to who his
evaluators will be.’’
Our review of the court’s ruling persuades us that
Judge Gold based his decision, in part, on the defen-
dant’s behavior, i.e., his intentional and calculated deci-
sion to refuse to participate in the competency
evaluation. Jacobs testified, and defense counsel
acknowledged in his argument to Judge Gold, that the
defendant refused to speak to Jacobs because she pre-
viously opined that the defendant was competent and
he believed her opinion would not change. As the court
noted in its ruling, the defendant did not refuse to speak
to everyone, he just refused to speak with anyone whom
he believed would find him competent to stand trial.
There is no indication in the transcript of the hearing
or elsewhere in the record that the defendant’s refusal
to participate in the evaluation was an invocation of
his fifth amendment privilege against self-incrimination,
as now claimed on appeal. The fifth amendment guaran-
tees that no person in a criminal case shall be compelled
to be a witness against himself. The privilege, however,
‘‘generally is not self-executing,’’ meaning that an indi-
vidual who desires its protection ‘‘must [affirmatively]
claim it.’’ (Internal quotation marks omitted.) Salinas
v. Texas, U.S. , 133 S. Ct. 2174, 2178, 186 L. Ed.
2d 376 (2013). ‘‘[A] witness does not do so by simply
standing mute.’’ Id.
In the present case, Judge Gold found the defendant
competent to stand trial because his refusal to cooper-
ate in the competency evaluation evidenced a conscious
decision on the defendant’s part that was calculated to
obtain the result that he believed was best for him. We
conclude that the court did not base its determination
of competency on improper considerations.
B
The defendant’s next claim is that the court improp-
erly denied defense counsel’s requests for an additional
competency evaluation of the defendant made during
the course of the trial proceedings. The defendant
argues that ‘‘[t]he trial court should have found reason-
able doubts about [the defendant’s] competency to
stand trial and ordered an evaluation.’’ He supports this
argument with references to ‘‘[t]he vigor with which
defense counsel asked for a competency evaluation,’’
the defendant’s ‘‘strange garbling of legal terminology,’’
and the defendant’s ‘‘fail[ure] to engage with any of the
real issues in the case . . . .’’
We first set forth the applicable standard of review
and legal principles that guide our analysis. Section 54-
56d (a) provides in relevant part that ‘‘[a] defendant
shall not be tried, convicted or sentenced while the
defendant is not competent. . . . [A] defendant is not
competent if the defendant is unable to understand the
proceedings against him or her or to assist in his or her
own defense.’’ ‘‘General Statutes § 54-56d (b), however,
posits a presumption in favor of a defendant’s compe-
tence. . . . Every criminal defendant is presumed to
be competent. . . . During the course of the criminal
proceedings, however, if it appears that the defendant
is not competent, either party or the court may request
an examination to determine the defendant’s compe-
tency. General Statutes § 54-56d (c).
‘‘The provisions of § 54-56d state that if it appears
that the defendant is not competent, and if the trial
court finds that a request for a competency evaluation
is justified, the court must order a competency examina-
tion. We have interpreted this standard as requiring a
competency evaluation any time a reasonable doubt is
raised regarding the defendant’s competency. . . . To
establish such reasonable doubt, the defendant must
present substantial evidence, not merely allegations,
that he is incompetent. . . . Substantial evidence is a
term of art. Evidence encompasses all information
properly before the court, whether it is in the form of
testimony or exhibits formally admitted or it is in the
form of medical reports or other kinds of reports that
have been filed with the court. Evidence is substantial
if it raises a reasonable doubt about the defendant’s
competency. . . .
‘‘We review the court’s ruling on a motion for a com-
petency evaluation under the abuse of discretion stan-
dard. . . . In determining whether the trial court [has]
abused its discretion, this court must make every rea-
sonable presumption in favor of [the correctness of] its
action. . . . Our review of a trial court’s exercise of
the legal discretion vested in it is limited to the questions
of whether the trial court correctly applied the law and
could reasonably have reached the conclusion that it
did.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Crawley, 138 Conn. App. 124, 139–40, 50
A.3d 349, cert. denied, 307 Conn. 925, 55 A.3d 565 (2012).
On February 10, 2012, which was the fifth day of trial,
defense counsel twice orally moved for an additional
competency evaluation of the defendant. The record
reflects that the first oral request was made before
the defendant exercised his right to testify on his own
behalf, and the second oral request7 was made before
counsel’s closing arguments.
With respect to the first request on the fifth day of
trial, the state argued that the motion should be denied
because the defendant had demonstrated his under-
standing of the trial proceedings through his conduct
and statements to the court. The state further com-
mented that the latest report from the professionals at
the Whiting Forensic Division, which was dated Decem-
ber 20, 2011, indicated that the defendant was a malin-
gerer. The state maintained that the defendant’s
behavior was calculated and could be controlled when
he chose to do so. Defense counsel responded that he
had ‘‘sincere and profound doubts about [the defen-
dant’s] competency to stand trial.’’8 He claimed that the
defendant’s views ‘‘[did] not comport [with] reality’’ and
that he refused to meet with his counsel.
The court, noting that the last competency evaluation
concluded that the defendant was malingering and was
competent to stand trial, asked counsel if there was
any difference in the defendant’s behavior from the
time of the last evaluation session to the time of voir
dire and trial. The state responded: ‘‘Absolutely none.
He keeps on saying the same things.’’ Defense counsel
responded: ‘‘Judge, to directly answer the court, there
is no difference, but that does not allay the concerns
that I have expressed . . . .’’
Under the circumstances of this case, we cannot con-
clude that the court abused its discretion in denying
defense counsel’s requests for an additional compe-
tency evaluation. The most recent competency report,
dated December 20, 2011, concluded that the defendant
was competent to stand trial and that he had a sufficient
understanding of the proceedings to assist his counsel
at trial. The defendant was diagnosed as a malingerer.
Judge Alexander, accepting the diagnosis of malinger-
ing as stated in the report, found the defendant compe-
tent to stand trial on January 6, 2012. Approximately one
month later, defense counsel requested an additional
competency evaluation of the defendant, even though
he acknowledged that there had been no change in the
defendant’s behavior from the time of the last evalua-
tion. The trial court, having had the opportunity to view
the defendant’s demeanor during voir dire and over the
course of the trial proceedings, was in an advantageous
position to evaluate the defendant’s behavior as it
affected his ability to assist in his defense. See State v.
Bigelow, 120 Conn. App. 632, 642, 994 A.2d 204, cert.
denied, 297 Conn. 916, 996 A.2d 278 (2010).9 Accord-
ingly, the court acted within its discretion in denying
the two oral requests for an additional competency
examination of the defendant.
III
The defendant’s next claim is that the court improp-
erly forced him to choose between his right to represen-
tation by counsel and his right to testify on his own
behalf. Additional facts and procedural history are nec-
essary for the resolution of this claim.
When the defendant stated that he wanted to testify
at trial, defense counsel10 first argued that he was not
a competent witness. The court immediately asked the
defendant questions addressed to that issue and ruled
that he was a competent witness. Defense counsel then
argued that the defendant had not sought his attorneys’
advice and did not want their counsel, and made the
following representation: ‘‘[I]t’s my assessment of the
situation, Your Honor, that should [the defendant] take
the [witness] stand and testify, he will essentially be
representing himself.’’ (Emphasis added.)
The court responded that the defendant had not
waived his right to counsel and then asked defense
counsel whether they were filing a motion to withdraw
as counsel. Defense counsel indicated that they had
not filed such a motion, but that they would do so if
necessary. The court directed several questions to the
defendant: ‘‘[Y]our attorney is indicating that if you
testify, you’ll be representing yourself. Do you under-
stand that?’’ When the defendant answered in the affir-
mative, the court asked: ‘‘Is that what you want to do?’’
The defendant responded: ‘‘I’ll do so, ma’am.’’ The court
told the defendant that he had the right to an attorney,
that he would be taking a risk by proceeding with his
attorneys as standby counsel during his testimony, and
that anything he said on the witness stand could affect
the outcome of the case. The court warned the defen-
dant that he would be at a disadvantage because he did
not possess the training and skill of an attorney. The
defendant responded: ‘‘I understand everything you’re
stating, ma’am.’’ After reminding the defendant again
that he had the right to be represented by counsel, and
receiving his acknowledgement of that right, the court
ruled: ‘‘I have to let him self-represent . . . during this
point, counsel. But I’m going to appoint counsel as
standby counsel, certainly for periods of—for purposes
of objection during the cross-examination. . . . Well,
standby counsel for purposes of his testimony only.’’
Following the court’s ruling, the state rested.
Defense counsel called four defense witnesses before
the defendant took the witness stand to testify on his
own behalf. After defense counsel asked the defendant
some preliminary questions, the defendant gave a very
short statement. The state’s cross-examination was
brief, and there was no redirect testimony.
On appeal, the defendant now argues that ‘‘the trial
court violated the defendant’s right to counsel by condi-
tioning the defendant’s right to testify in his own behalf
on him waiving his right to counsel and proceeding pro
se.’’ The defendant claims that the court ‘‘forced [him]
to choose between his right to counsel and his right to
testify in his own behalf.’’ According to the defendant,
‘‘the court allowed [the defendant’s] attorneys to aban-
don him at a time that he needed them the most based
solely on his desire to testify in his own behalf.’’ The
defendant admits that this claim is unpreserved, ‘‘in the
sense that [the defendant] did not object and say that
he wanted to have an attorney and testify on his own
behalf,’’ and therefore asks this court for review under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989).11 (Emphasis in original.)
It is not clear from the record that the defendant’s
counsel were no longer representing him at the time
he chose to take the witness stand and testify on his
own behalf.12 What is clear is that the defendant was
unequivocal in his demand to exercise his fundamental
constitutional right to testify at trial.13 What also is clear
is that defense counsel persistently requested the court
to find that the defendant either was incompetent to
stand trial or was not competent to give testimony as
a witness. When they were unsuccessful in their numer-
ous attempts to persuade the court of the defendant’s
incompetency, they then proceeded to distance them-
selves from the defendant’s choice to exercise his right
to testify before the jury on his own behalf.
The defendant was found by Judge Gold to have been
restored to competency on May 16, 2011. The defendant
was found competent to stand trial by Judge Alexander
on January 6, 2012. Judge Dewey, during the jury trial,
denied defense counsel’s requests for an additional
competency evaluation. The transcript is replete with
the court asking the defendant questions to determine
whether he understood his rights and the court proceed-
ings. The court expressly stated that it agreed with the
competency reports that diagnosed the defendant as a
malingerer. It is apparent that defense counsel dis-
agreed with these rulings, but their statements sur-
rounding the defendant’s choice to testify at trial were
confusing and unhelpful to the court.
Defense counsel did not move, either orally or in
writing, to withdraw as counsel for the defendant.
Instead, defense counsel made the representation that
counsel would file such a motion ‘‘if that’s what I need
to do.’’ At no time did the court tell the defendant that
if he chose to testify, he would have to waive his right
to counsel. It was defense counsel who indicated that
if the defendant chose to testify, he would essentially
be self-represented and on his own. On appeal, the
defendant represents that his trial attorneys ‘‘aban-
doned’’ him, yet he argues that it was the court that
forced him to choose between two fundamental consti-
tutional rights.14
Because of defense counsel’s allusions to withdrawal
and self-representation, the court did canvass the defen-
dant as to the choices he was making. This canvass,
along with the defendant’s responses to the court’s
questions throughout the trial, led the court to conclude
that the defendant could ‘‘self-represent . . . during
this point’’ with his defense counsel as ‘‘standby coun-
sel, certainly . . . for purposes of objection during the
cross-examination’’ when the defendant testified on his
own behalf. Even if we assume arguendo that the defen-
dant was self-represented at that stage of the trial pro-
ceeding, we conclude that the court did canvass the
defendant in accordance with Practice Book § 44-3 to
ensure that his choice to proceed pro se had been made
in a knowing and intelligent fashion. The court clearly
advised the defendant that he had the right to counsel
and made him aware of the dangers and disadvantages
of self-representation. Additionally, the court had
observed the defendant’s conduct during the trial and
remarked that his responses indicated an intelligence
and capacity to appreciate the consequences of his
choice. Further, the court reminded the defendant that,
if convicted of murder, he faced a penalty of twenty-five
years to life imprisonment. See Practice Book § 44-3.
Accordingly, we conclude that the court did not force
the defendant to choose between two constitutional
rights.15 Furthermore, the court canvassed the defen-
dant several times during the trial in response to various
claims made by defense counsel regarding the defen-
dant’s competency16 and his choice to testify on his own
behalf, ‘‘essentially . . . representing himself.’’ The
court’s canvasses were thorough and appropriate. The
defendant’s claim fails.
IV
The defendant’s next claim is that the court improp-
erly dismissed a juror during the trial proceedings. He
argues that ‘‘the juror in question was improperly
replaced by an alternate through the court’s erroneous
understanding of the law.’’ The defendant claims that
‘‘[t]he remedy for such an error should be a new trial.’’
We are not persuaded.
By way of background, one of the defense witnesses
testified that he had seen the defendant during the
weekend of Reddick’s death. His testimony, however,
was confusing at times, and he gave contradictory
answers on direct and cross-examination. One of the
details the witness provided was that the day of the
murder was warm and sunny. Shortly after the witness’
testimony, one of the jurors gave a note to the clerk:
‘‘Can we find out what the weather was really like on
November 1 into November 2 of 2008?’’ The remaining
jurors were excused from the courtroom, and the court
began questioning the juror about his note:
‘‘The Court: Did you discuss this note with anyone?
‘‘The Juror: No.
‘‘The Court: This is your question, correct, and so the
jurors haven’t been discussing the evidence?
‘‘The Juror: No.
‘‘The Court: All right, so this is just something you’re
curious about?
‘‘The Juror: Yes.
‘‘The Court: Have you been forming an opinion about
what the verdict should or shouldn’t be?
‘‘The Juror: No, I was just wondering about how the
weather would correlate with another witness’ tes-
timony.
‘‘The Court: Oh, I understand that, but my question
is have you begun to think about [what] the verdict
should or shouldn’t be?
‘‘The Juror: No, just wondering how things fit
together.’’
The juror was excused to the jury room, and the court
and counsel discussed the situation. Defense counsel
stated that he would ‘‘take [the juror] at his word’’ and
not move to excuse him. The prosecutor responded: ‘‘I
would ask to remove him, Your Honor, because when
you asked him the question of whether he had made a
decision with respect to the verdict, his first answer—
he started to say yes, and then he kind of backed off
a little bit and hemmed and hawed and he’s like, no, I
was just a little curious about trying to put it all together,
and it sounds by his responses and his physical appear-
ance when he was responding to the court’s question
that he already does have his mind made up with respect
to things. He is thinking about the verdict, exactly what
the court has told them not to do.’’ Defense counsel
disagreed with the prosecutor’s assessment, and con-
cluded by stating: ‘‘I’ll leave it to the court, certainly
. . . .’’
The court called the juror back into the courtroom
and told him: ‘‘I am really sorry, but it does indicate—
you’re beginning to do what I had asked [the jurors]
not to do, begin to deliberate about what the verdict
should or shouldn’t be. I’m going to have to excuse you
as a juror.’’ An alternate juror replaced the excused
juror, and the defendant then took the witness stand
to testify on his own behalf. The defendant claims in
his brief to this court that the dismissal was improper
because the excused juror was ‘‘internally deliberating’’
only. (Emphasis omitted.) He argues that improper
deliberation would require a discussion with the other
jurors, and that the excused juror told the court that
he had not discussed his note with the other jurors
and that he had not made up his mind with respect to
the verdict.
We first set forth the applicable standard of review.
‘‘A court may excuse a regular juror if that juror, for
any reason, becomes unable to perform his or her duty.
General Statutes § 54-82h (c). The power to excuse a
juror under this section is expressly premised on a
finding of cause. . . . Whether in the circumstances
just cause exists to excuse a juror is a matter within
the discretion of the . . . court.’’ (Internal quotation
marks omitted.) State v. Banks, 117 Conn. App. 102,
111–12, 978 A.2d 519, cert. denied, 294 Conn. 905, 982
A.2d 1081 (2009). ‘‘[P]resubmission discussion of the
evidence by jurors in any degree is not an acceptable
practice and constitutes misconduct.’’ (Internal quota-
tion marks omitted.) Bova v. Commissioner of Correc-
tion, 95 Conn. App. 129, 136, 894 A.2d 1067, cert. denied,
278 Conn. 920, 901 A.2d 43 (2006). Similarly, the precon-
ceived or premature formation of an opinion with
respect to the guilt of a defendant or the verdict may
constitute juror misconduct. See State v. Osimanti, 299
Conn. 1, 34, 6 A.3d 790 (2010); State v. Cubano, 203
Conn. 81, 90–91, 523 A.2d 495 (1987).
The remarks of the court and counsel indicate that
there was a legitimate concern that the juror already
had formed an opinion as to the guilt or innocence of
the defendant. Although the juror responded that he
had not yet decided what the verdict should be and
that he had not discussed any of the evidence with the
other jurors, we defer to the court’s determination that
there was cause to excuse the juror during the trial.
‘‘[W]e are aware of the broad discretion of a trial judge
which includes his determination of the credibility to
be given a juror’s statement in this context.’’ (Internal
quotation marks omitted.) State v. Osimanti, supra, 299
Conn. 35. ‘‘[T]he trial judge has a superior opportunity to
assess the proceedings over which he or she personally
has presided . . . and thus is in a superior position to
evaluate the credibility of allegations of jury miscon-
duct, whatever their source.’’ (Internal quotation marks
omitted.) Id., 33–34.
Furthermore, the defendant has not shown how the
juror’s dismissal resulted in any harm to him. He has
not claimed that this juror would have been beneficial
to him if he had remained on the jury. See State v. Mills,
57 Conn. App. 356, 365, 748 A.2d 891 (2000). Instead, the
defendant claims that ‘‘[t]his dismissal deprived [him] of
his right to a trial by jury and his right to be tried by
the jury that was actually empaneled (as opposed to the
alternates) absent any legitimate reason for dismissal.’’
The defendant provides no statute or case law in sup-
port of that claim.
To summarize, in reviewing a claim that the court
abused its discretion in excusing a juror from the panel
during the trial, we adhere to the rule that great weight
is to be afforded to the action of the court and that
every reasonable presumption should be given in favor
of its correctness. The ultimate question is whether the
trial court reasonably could conclude as it did. See
Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252
(1983). From our careful review of the record, we can-
not conclude that the trial court abused its discretion
in excusing the juror.
V
The defendant’s final claim is that the court’s supple-
mental jury instructions, given in response to two jury
notes requesting clarification of intent, were inade-
quate, and, in fact, allowed the jury to find him guilty
on an uncharged and unproven theory of murder. The
defendant argues that the jurors’ questions ‘‘indicated
that they had reasonable doubts’’ that he ‘‘had the intent
to kill Reddick when the wounds were inflicted.’’ He
claims that the jury wanted to know whether it could
find him guilty of murder for his intentional failure to
obtain lifesaving medical treatment for Reddick,
thereby forming the intent to kill after the wounds were
inflicted. Because the information charged the defen-
dant with the intent to kill at the time he inflicted the
wounds, the defendant maintains that the court should
have given the following supplemental instruction:
‘‘[Y]ou may not convict if you find that intent to kill
was only formed after the wounds were inflicted.’’ As
a result of the court’s failure to give that instruction,
the defendant claims, the jury found him guilty on an
uncharged theory of murder, which constitutes revers-
ible error.
The record reveals the following additional relevant
facts and procedural history. The operative information
alleged, in relevant part, that ‘‘on or about November
1, 2008, at 47 Berkeley Drive, Hartford, Connecticut,
the said defendant with the intent to cause the death
of Tashima Reddick, did cause the death of Tashima
Reddick by inflicting multiple sharp force injuries to her
body.’’ The state tried its case pursuant to the charged
theory of murder. After the parties rested and counsel
gave their closing arguments, the court instructed the
jury. The court first gave a general instruction on intent17
and, subsequently, when charging on the crime of mur-
der, the court gave further instructions on the element
of specific intent.18 The court provided a copy of its
written instructions to the jury as a court exhibit.
At 4:40 p.m. that day, the jury gave the court its first
note on the issue of intent. The note provided: ‘‘We
know it is in the instructions but we would like clarifica-
tion. Intent—The time frame to determine intent. Is it
limited up to and during the infliction of the wounds,
or [are] actions immediately after the infliction of those
wounds also considered as far as intent.’’ Because it
was late in the afternoon, the court told counsel that it
would prepare a supplemental instruction that evening
and review it with them in the morning. The court then
called the jurors into the courtroom and told them that
it would provide a clarification on intent first thing in
the morning.
The following morning, the court distributed to coun-
sel its proposed supplemental instruction on intent.
Defense counsel indicated that the jurors’ question gave
him concern that they were questioning whether the
intent to kill could be formed after the injuries were
inflicted ‘‘by not getting care, for instance.’’ The prose-
cutor disagreed and stated that the court’s supplemental
instruction was a specific response to a specific ques-
tion. The court agreed with the prosecutor and gave
the supplemental instruction that it already had pre-
pared.19 A copy of the written supplemental instruction
was provided to the jury as a court exhibit.
Shortly thereafter, the court received another note
from the jury concerning the issue of intent. That note,
in the form of a hypothetical question, read as follows:
‘‘A person inflicts potentially fatal injuries unto another
person. The victim does not die and can be saved if
immediate medical treatment is sought. The perpetrator
does not seek medical help for the victim and decides
to let the victim die. Does intent to commit murder
happen in this situation when the perpetrator decides
to let the victim die even though it was after the physical
altercation?’’ (Emphasis in original.) Defense counsel,
again, expressed his concern that the jury was not con-
fining itself to the crime as charged in the information,
which alleged that the defendant formed the intent to
kill Reddick at the time that he inflicted the injuries.
Although defense counsel acknowledged that intent can
be inferred from the defendant’s conduct before, during
and after the infliction of the injuries,20 he argued that
an intent to kill formed after the injuries were inflicted
could not be the basis for a murder conviction because
the state had not charged that theory of murder in
the information.
The court called the jury into the courtroom and
gave the following supplemental instruction on intent:
‘‘Intent is a question of fact for the jury, solely the
question of fact, solely for you to determine. You can’t
speculate or expand the information; there must be
evidence for the inference of intent. So, we can’t direct
you as to what to do. I’m suggesting that you look at the
long form information and look at what the definition of
intent is. Thank you.’’ After the jury was excused to
resume deliberations, the court stated: ‘‘I will note for
the record, the jurors were nodding, they seemed to
acquiesce in that instruction.’’ Thereafter, the jury
announced that it had reached a verdict and found the
defendant guilty of murder.
The defendant does not claim that the supplemental
instruction given by the court was erroneous in law.
Rather, he claims that it was inadequate to address
the jury’s question because it expanded the charge of
murder to encompass an uncharged theory of murder.
The state argues that it was not reasonably possible
that the court’s instructions misled the jury and that
the court’s supplemental instruction on intent did not
improperly expand the murder charge. We agree with
the state.
We first set forth the applicable standard of review.
‘‘A claim that the court’s jury instructions improperly
enlarged the scope of the offense charged implicates
the criminal defendant’s sixth amendment rights, under
the federal constitution, to be sufficiently informed of
the nature of the charges against him. . . . The func-
tion of an accusatory pleading such as an information
is to inform a defendant of the nature and cause of
the accusation as required by our federal and state
constitutions. . . . [That] the offense should be
described with sufficient definiteness and particularity
as to apprise the accused of the nature of the charge
so he can prepare to meet it at his trial . . . are princi-
ples of constitutional law [that] are inveterate and sac-
rosanct. . . .
‘‘[E]nlargement cases involve claims that the trial
court expanded the state’s information by instructing
the jury on statutory or factual alternatives not charged
in the information. . . . The defendant’s enlargement
claims, like other claims that jury instructions violated
a constitutional right, require us to exercise plenary
review as we examine the charge as a whole to deter-
mine whether it misled the jury.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
State v. Dunstan, 145 Conn. App. 384, 395–96, 74 A.3d
559, cert. denied, 310 Conn. 958, 82 A.3d 626 (2013).
‘‘In other words, we must consider whether the instruc-
tions [in totality] are sufficiently correct in law, adapted
to the issues and ample for the guidance of the jury.’’
(Internal quotation marks omitted.) State v. Hampton,
293 Conn. 435, 453, 978 A.2d 1089 (2009).
In the present case, the court’s initial instructions on
intent and specific intent were correct in law. It is well
established that the fact finder may consider an
accused’s conduct after the commission of the crime
as evidence of his intent at the time the crime was
committed. See State v. Otto, 305 Conn. 51, 66–67, 43
A.3d 629 (2012). Further, the court’s supplemental
instructions on intent were correct in law. Although
the defendant claims that the jury found him guilty
on a theory of murder that was not charged in the
information, the court expressly directed the jurors as
follows: ‘‘You can’t speculate or expand the informa-
tion; there must be evidence for the inference of intent.
. . . I’m suggesting that you look at the long form infor-
mation and look at what the definition of intent is.’’
The defendant’s conduct after he inflicted the injuries
clearly was relevant to the intent that he had when he
inflicted those injuries. The court therefore properly
refused to change its previous definition of specific
intent and instructed the jurors to review the definition
contained in their copy of the court’s initial jury
instructions.
‘‘The jury is presumed, in the absence of a fair indica-
tion to the contrary, to have followed the court’s instruc-
tions.’’ (Internal quotation marks omitted.) State v.
Dunstan, supra, 145 Conn. App. 396. There is nothing
in the record that indicates that the jury did not follow
the court’s initial and supplemental instructions.
Accordingly, we conclude that the court’s supplemental
instructions on intent did not improperly expand the
charge of murder as set forth in the information.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2
One of the cuts to Reddick’s head, however, resulted in an injury that
extended through her scalp and fractured the orbital ridge. If the wound
had been one-half inch lower, the cutting instrument easily could have gone
into her brain and been lethal.
3
Subsequent testing revealed that the hair strands, bloodstains collected
from the apartment and the blood on the front passenger seat of the 1998
Volvo matched the samples taken from Reddick’s body. Reddick’s DNA was
found on the lip of the water bottle.
4
General Statutes § 54-56d (c) provides: ‘‘Request for examination. If, at
any time during a criminal proceeding, it appears that the defendant is not
competent, counsel for the defendant or for the state, or the court, on its
own motion, may request an examination to determine the defendant’s com-
petency.’’
5
Salkeld testified that the judge appeared to have signed the warrant at
6:09 a.m. that morning, calling into question the accuracy of the times on
the warrant and Baez’ report.
6
We note that defense counsel requested another pretrial competency
evaluation after Judge Gold’s May 16, 2011 ruling, which was granted by
Judge Alexander on September 28, 2011. A competency hearing was held
on January 6, 2012, after the competency report was completed, and Judge
Alexander accepted the diagnosis in the report that the defendant was
malingering and found that he was competent to stand trial. The defendant
has not challenged Judge Alexander’s ruling in this appeal, even though it
was made subsequent to Judge Gold’s determination of competency.
7
Defense counsel asked the court to reconsider its earlier ruling denying
the oral request for a competency evaluation in light of the defendant’s
testimony before the jury. The court denied the second request: ‘‘I understand
your position, counsel. Having heard the [defendant’s] testimony, I am more
inclined to concur with what happened at the competency evaluation [that
concluded that the defendant was malingering].’’
8
‘‘Although the opinion of defense counsel is a factor to be considered
when considering a § 54-56d motion, the court need not accept counsel’s
opinion without question.’’ (Internal quotation marks omitted.) State v.
Crawley, supra, 138 Conn. App. 140–41.
9
‘‘[T]he trial judge is in a particularly advantageous position to observe
a defendant’s conduct during a trial and has a unique opportunity to assess
a defendant’s competency. A trial court’s opinion, therefore, of the compe-
tency of a defendant is highly significant.’’ (Internal quotation marks omit-
ted.) State v. Bigelow, supra, 120 Conn. App. 642.
10
The defendant was represented by two public defenders during the trial.
11
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation clearly exists and clearly deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40.
12
Defense counsel stated: ‘‘[I]t’s my assessment of the situation, Your
Honor, that should [the defendant] take the [witness] stand and testify, he
will essentially be representing himself.’’ (Emphasis added.)
13
‘‘The right to testify on one’s own behalf at a criminal trial has sources
in several provisions of the Constitution. It is one of the rights that are
essential to due process of law in a fair adversary process. . . . The neces-
sary ingredients of the Fourteenth Amendment’s guarantee that no one shall
be deprived of liberty without due process of law include a right to be heard
and to offer testimony . . . . The right to testify is also found in the Compul-
sory Process Clause of the Sixth Amendment, which grants a defendant the
right to call witnesses in his favor . . . . Logically included . . . is a right
to testify himself. . . . The opportunity to testify is also a necessary corol-
lary to the Fifth Amendment’s guarantee against compelled testimony. . . .
A defendant’s right to testify is also protected by his rights to a fair trial,
to due process, to present a defense, and to be free from compelled testimony
under article XVII of the amendments to the Connecticut constitution and
under article first, § 8, of the Connecticut constitution.’’ (Citations omitted;
internal quotation marks omitted.) State v. Shinn, 47 Conn. App. 401, 410,
704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).
14
This claim of the defendant has attributes similar to claims that our
appellate courts have rejected under the doctrine of invited error. ‘‘As we
previously have explained, the term induced error, or invited error, has been
defined as [a]n error that a party cannot complain of on appeal because
the party, through conduct, encouraged or prompted the trial court to make
the erroneous ruling. . . . It is well established that a party who induces
an error cannot be heard to later complain about that error. . . . This
principle bars appellate review of induced nonconstitutional error and
induced constitutional error.’’ (Citation omitted; emphasis in original; inter-
nal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 59 n.32, 901
A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d
85 (2007).
15
Even if we had concluded that the defendant had to choose between
two constitutional rights, we note that ‘‘[t]he fact that an accused is con-
fronted with the prospective waiver of one constitutional right in order to
preserve the integrity of another constitutional right does not necessarily
create a conflict that is in itself unconstitutional. . . . The fact that the
defendant had to make a difficult choice between two constitutional rights
does not deprive him of due process.’’ (Citation omitted; internal quotation
marks omitted.) State v. Easton, 111 Conn. App. 538, 543, 959 A.2d 1085
(2008), cert. denied, 290 Conn. 916, 965 A.2d 555 (2009).
16
The defendant additionally claims that the court improperly failed to
conduct an inquiry as to whether he was competent to represent himself
when he elected to testify on his own behalf. Because this claim was not
preserved at trial, he requests reversal under the plain error doctrine. Citing
State v. Connor, 292 Conn. 483, 973 A.2d 627 (2009), the defendant argues
that the court was required to make an additional determination that the
defendant, although competent to stand trial, was competent to represent
himself at that stage of the proceedings. As our Supreme Court held in
Connor, ‘‘we conclude that, upon a finding that a mentally ill or mentally
incapacitated defendant is competent to stand trial and to waive his right
to counsel at that trial, the trial court must make another determination, that
is, whether the defendant also is competent to conduct the trial proceedings
without counsel.’’ Id., 518–19.
The defendant’s claim fails because, assuming arguendo that he is ‘‘men-
tally ill’’ or ‘‘mentally incapacitated,’’ and assuming that he was self-repre-
sented for the limited purpose of testifying on his own behalf, there is
nothing in the record to support the argument that the trial court failed to
comply with the holding in Connor. As previously discussed, the court
questioned the defendant several times during the course of the trial proceed-
ings. Although the court did not explicitly find that the defendant was
competent to represent himself under Connor, this case was tried before
the jury after Connor was decided and the court is presumed to have applied
the applicable law. See State v. Kuncik, 141 Conn. App. 288, 294–95, 61 A.3d
561 (‘‘[t]he court was required to make a determination under the heightened
standard set forth in Connor and, although the record does not reveal
that the court ever expressly found that the defendant was competent to
represent himself under such a standard, ‘the court is presumed to know
the law and apply it correctly to its legal determinations’ ’’), cert. denied,
308 Conn. 936, 66 A.3d 498 (2013).
Accordingly, we conclude that the defendant cannot prevail under the
plain error doctrine because he has not demonstrated that the failure to
grant relief will result in manifest injustice. See State v. Tierinni, 144 Conn.
App. 232, 238 n.2, 71 A.3d 675, cert. denied, 310 Conn. 911, 76 A.3d 627 (2013).
17
The court’s initial instruction on intent was as follows: ‘‘Intent is an
element of each of the crime[s] charged. Intent relates to the condition of
mind of the person who commits the act, his purpose in doing it. Specific
intent is the intent to achieve a specific result. A person acts ‘intentionally’
with respect to a result when his conscious objective is to cause such result.
What the defendant intended is a question of fact for you to determine.
‘‘What a person’s intention was is usually a matter to be determined by
inference. No person is able to testify that he looked into another’s mind
and saw therein a certain knowledge or a certain purpose or intention to
do harm to another. Because direct evidence of the defendant’s state of mind
is rarely available, intent is generally proved by circumstantial evidence. The
only way a jury can ordinarily determine what a person’s intention was at
any given time is by determining what the person’s conduct was and what
the circumstances were surrounding that conduct and from that infer what
his intention was.
‘‘To draw such an inference is the proper function of a jury, provided of
course that the inference drawn complies with the standards for inferences
as explained in connection with my instruction on circumstantial evidence.
The inference is not a necessary one. You are not required to infer a particular
intent from the defendant’s conduct or statements, but it is an inference
that you may draw if you find it is reasonable and logical. I again remind
you that the burden of proving intent beyond a reasonable doubt is on
the state.’’
18
In charging the jury on the crime of murder, the court gave the following
instruction on the element of intent: ‘‘For you to find the defendant guilty
of this charge, the state must prove the following elements beyond a reason-
able doubt:
‘‘Element 1—Intent to cause death. The first element is that the defendant
specifically intended to cause the death of another person. There is no
particular length of time necessary for the defendant to have formed the
specific intent to kill. A person acts ‘intentionally’ with respect to a result
when his conscious objective is to cause such result.
‘‘This is an offense that requires specific intent. The intent to cause death
may be inferred from circumstantial evidence. Refer to the earlier instruc-
tions on specific intent and evidence of intent.
‘‘The type and number of wounds inflicted, as well as the instrument
used, may be considered as evidence of the perpetrator’s intent, and from
such evidence an inference may be drawn that there was intent to cause a
death. The defendant’s conduct subsequent to the infliction of injury may
also be considered.
‘‘Any inference that may be drawn from the nature of the instrumentality
used and the manner of its use is an inference of fact to be drawn by
you upon consideration of these and other circumstances in the case in
accordance with my previous instructions. This inference is not a necessary
one; that is, you are not required to infer intent from the defendant’s alleged
conduct, but it is an inference you may draw if you find it is reasonable and
logical and in accordance with my instructions on circumstantial evidence.’’
19
The court’s supplemental instruction provided: ‘‘In response to your
question last evening, as you indicated, intent is defined in the instructions.
Both murder, as defined on pages 11–12, and intentional manslaughter in
the first degree, pages 13–14, require specific intent. You have the general
instruction on intent on page 3. Please note on page 11, I expanded that
definition. It applies to both crimes.
‘‘You are not limited to the time immediately preceding and during the
injuries. If you find supporting evidence, intent can be inferred from action
subsequent to the infliction of the wounds. In short, any evidence of intent,
before, during and after, is relevant.’’
20
‘‘[T]he specific intent to kill is an essential element of the crime of
murder. To act intentionally, the defendant must have had the conscious
objective to cause the death of the victim. . . . Because direct evidence of
the accused’s state of mind is rarely available . . . intent is often inferred
from conduct . . . and from the cumulative effect of the circumstantial
evidence and the rational inferences drawn therefrom. . . . Intent to cause
death may be inferred from the type of weapon used, the manner in which
it was used, the type of wound inflicted and the events leading to and
immediately following the death.’’ (Internal quotation marks omitted.) State
v. Otto, 305 Conn. 51, 66–67, 43 A.3d 629 (2012).