dissenting. I disagree with much of the majority’s analysis in this capital murder case, in which the state sought the death penalty for the defendant, Jason Day. Nevertheless, I reach only one issue. In my view, the defendant’s conviction must be reversed and a new trial ordered because the trial court failed to grant the defendant’s motion for a mistrial.
I
Before embarking on an analysis of the precise legal issues involved, it is helpful to begin with a more thorough understanding of the procedural background of the case and of the factual circumstances that led up to the defendant’s motion for mistrial.
The defendant initially was taken into police custody on March 23,1990, when he was arrested in Maryland on suspicion of committing multiple murders in Connecticut.1 The murder victims included the defendant’s girlfriend and a five year old boy who had lived in their apartment. Federal authorities returned the defendant to this state on June 7, 1990. The defendant subsequently was charged in Connecticut with one count of capital felony in violation of General Statutes § 53a-54b (8), four counts of murder in violation of General Statutes § 53a-54a (a) and one count of assault in the third degree in violation of General Statutes *857§ 53a-61 (a) (1). Two attorneys from the public defender’s office were assigned to represent the defendant, who was unable to afford a private attorney.
The defendant was incarcerated prior to trial under conditions that were very oppressive. Because of the nature of the crimes of which the defendant was accused, many inmates threatened him and repeatedly warned prison officials that the defendant’s safety was in danger. The state department of correction continually shuffled the defendant between prisons in an attempt to keep him safe. The deputy warden at the correctional center at Cheshire testified that “there were many, many uprisings [in response to the defendant’s presence]. In fact, when he came through one of the blocks, the [inmates housed in the] blocks started ranting and raving and screaming against him.” When he was at Cheshire, prison officials housed him in a separate cell, apart from the other inmates, and he was not allowed to mingle with the other prisoners. At times when it was necessary for the defendant to leave his cell, two prison officials would escort him in order to assure his safety.
After the defendant had been incarcerated under these conditions for nearly one year, he filed a pro se motion for a speedy trial pursuant to General Statutes § 54-82m and Practice Book § 956B.2 His attorneys were not aware that he was planning to file such a motion and, at the hearing on the motion, they advised the court that they were not prepared to go forward with his trial. Indeed, the state had not completed providing this defendant with discovery at this time. The defendant, however, reminded the court that he had been incarcerated for almost one year, and that “because of my position being incarcerated right now, that I chose, myself, being that it is my life that we’re *858speaking about, to file a speedy trial motion, because . . . it is my heart’s desire to go ahead with this . . . . [I]f the state has a case, in effect, a jury should decide that the state’s case is equivalent to the accusations, then I guess I’ll have to settle for the punishment and that is all well and clear in my mind at this time.” The trial court held that the defendant’s motion had effectively triggered the statutory speedy trial mechanism and, therefore, ordered that the defendant be brought to trial within thirty days.
Two weeks later, after being declared competent to stand trial, the defendant asked the court on March 26, 1991, to allow him to represent himself and to discharge the two public defenders assigned to represent him. At a hearing on this motion that same day, the defendant explained why he had filed the motion. “[It is] not that I felt they couldn’t do the job, it is just that at the time I am ready to have this issue dealt with, they felt that they are not ready or adequate. So I asked the question, if I wait are you guaranteeing me a win, [and they answered] no we are not, then what is the sense in me waiting if it is not to be. I will do it now and if I have to do it myself then so be it.” At this same hearing, however, the defendant indicated his distrust of the public defenders and his hope that he could contact a private attorney to help represent him. “[I]f I got in touch with someone in time, probably by—at least by the time that my jury was picked, maybe I could have someone to come in as standby counsel that will represent me and could possibly file an appearance on my behalf but not to speak with me but just that I can confer with him to make sime that my rights are not being denied or violated while the trial is taking place. . . . I think that I would be just a biggest fool as to put my life in the hands of attorneys who are appointed by the state against the state, I think one hand washes the other and regardless of what the situation may be, that is my situation.”
*859The trial court found that the defendant was competent to waive his constitutional right to counsel and that he had, in fact, effectively waived this right. In accordance with the defendant’s request, therefore, the trial court appointed the public defenders as standby counsel3 and allowed the defendant to represent himself. That same day, the defendant argued a motion that had been prepared earlier by the public defenders. The following day, the defendant, who had never before been to trial, began to select the jury.
The defendant served as his own counsel for only two days, including the first day of jury selection, before having second thoughts. On Thursday, March 28,1991, one of the public defenders appointed as standby counsel informed the court that the defendant “has realized during the course of yesterday’s proceedings that his inexperience in courtroom matters, particularly jury selection, and his lack of knowledge regarding legal proceedings places him at a disadvantage in the selection of the jury and so he feels that he should not proceed any further on his own and wishes to have this continuance so that he could have the opportunity to attempt to obtain private counsel over the weekend, Your Honor.” The trial court granted a continuance until the following Monday so that the defendant could seek out private counsel. The defendant, however, failed to obtain private counsel and continued to represent himself after the weekend.
*860In all, the defendant argued motions that had previously been filed by his court-appointed attorneys, conducted the entire jury selection and, during the first day of the presentation of evidence, cross-examined four prosecution witnesses. On the second day of the presentation of evidence, the defendant decided that he could not adequately represent himself, and the court reappointed standby counsel as his attorneys. They immediately moved the court to declare a mistrial, and they filed a detailed written motion setting forth their specific grounds.4 The trial court, however, denied the motion.
*861II
I agree with the majority that, as a general rule, the decision whether to declare a mistrial lies in the sound discretion of the trial court. State v. Hill, 201 Conn. *862505, 510, 518 A.2d 388 (1986); State v. Peary, 176 Conn. 170, 172, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979). The trial court’s discretion, however, is not unlimited in this regard. Rather, the trial court must grant a defendant’s motion for mistrial when “it is apparent to the court that because of some occurrence upon trial the accused cannot have a fair trial and the whole proceedings are vitiated. State v. Hafner, 168 Conn. 230, 245-46, 362 A.2d 925 [cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975)].” State v. Peary, supra, 172-73; State v. Wallace, 181 Conn. 237, 243, 435 A.2d 20 (1980). Similarly, the trial court should grant a defendant’s motion for mistrial when the occurrence “results in substantial and irreparable prejudice to the defendant’s case.” State v. DeFreitas, 179 Conn. 431, 460, 426 A.2d 799 (1980).
Moreover, in a case where the state is seeking the death penalty against a defendant, I believe that the trial court’s range of permissible discretion must be construed more narrowly. The trial court’s decision at *863that moment—whether to declare a mistrial and start again, or to continue forward in the same trial—has the potential to determine whether the defendant lives or dies.5 “Death penalty cases are different from all other cases. The punishment is final. If it is wrong, it cannot be corrected; it cannot be undone; it cannot be made right. And so, we [must] review this case with the utmost care and detail for the purpose of assuring ourselves that we do not impose the death penalty unlawfully, arbitrarily, or unjustly by slavish adherence to doubtful application of technical doctrine.” Engberg v. Meyer, 820 P.2d 70, 86 (Wyo. 1991).
Applying this stricter standard to this capital felony case, I conclude that the trial court was required to grant the defendant’s motion for a mistrial for two reasons: (1) the defendant had not been competent to *864decide to represent himself at the beginning of the trial; and (2) the defendant’s “odyssey into self-representation,” as the majority phrases it, had unavoidably affected the remainder of his trial, resulting in substantial and irreparable prejudice to his case. See State v. DeFreitas, supra, 179 Conn. 460.1 shall discuss these points in turn.
A
I disagree with the majority’s narrow approach to the issue of the defendant’s competency. The majority considers his competency only in the context of whether he could have waived his federal constitutional right to counsel and chosen to represent himself. In my view, however, we must also consider the defendant’s competency when reviewing the trial court’s refusal to grant a mistrial after the defendant had relinquished the reins of self representation and had accepted the services of court-appointed attorneys. Moreover, I believe that our capacity to consider the defendant’s competency at this latter stage is not proscribed by any federal constitutional rule.
At the outset, I agree with the majority that, in reviewing whether a trial court properly allowed a defendant to waive his federal constitutional right to counsel and to represent himself, we are bound by the decision of the United States Supreme Court in Godi-nez v. Moran, 509 U.S. 389, 398-99, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993). That decision holds that a state must apply the same test of competency to whether a defendant may waive his right to counsel as it does to whether a defendant may stand trial. Id., 398. Because this state determines a person’s competence to stand trial by asking whether he is able to understand the proceedings against him and to assist in his own defense; General Statutes § 54-56d (a);6 we *865must apply that same standard in determining whether the trial court should have granted or denied the defendant’s motion to represent himself.
The rule of Godinez, however, does not prohibit us from taking into consideration a defendant’s degree of competence later in the proceedings, after he has come to his senses and is willing to allow an attorney to represent him. As Justice Blackmun pointed out in his dissent in Godinez, the law always has “recognized that a defendant’s mental condition may be relevant to more than one legal issue, each governed by distinct rules reflecting quite different policies.” (Internal quotation marks omitted.) Godinez v. Moran, supra, 509 U.S. 413. Indeed, once the defendant has realized that he cannot and should not represent himself, the federal constitutional constraints of the Godinez rule vanish. As the majority aptly points out, that rule exists because “[application of a stricter competency test in the [waiver of counsel] analysis than was used in the [competency to stand trial analysis] would place an unconstitutional burden on the exercise of the defendant’s federal constitutional right to self-representation.” Once the defendant relinquishes the reins of self-representation and counsel is reappointed for him, however, we need no longer concern ourselves with burdening that right. Therefore, without regard to whether the defendant was competent to stand trial, the trial court should have taken into account the defendant’s actual degree of competency in determining whether justice required that a mistrial be granted.
The record in this case clearly reveals that, although the defendant may have been competent to stand trial, he surely was not competent to decide whether to represent himself. Charles A. Opsahl, a clinical psychologist and assistant clinical professor at Yale Medical School, conducted both psychological and neuro-*866psychological testing on the defendant.7 Opsahl testified that it was “clear” that the defendant suffered from brain damage due to head injuries or accidents that he had sustained in the past. He further testified that the defendant “.suffers from a delusional disorder marked by paranoid delusions and also grandiose delusions. And by that I mean that he is, in those areas, not in touch with reality. He at times believes that he is being persecuted, that people are out to kill him, that he has to be guarded to protect himself and [should not] say too much, and also has some grandiose delusions, that is, that he is more powerful than he really is, that he has special connections with certain people in a grandiose fashion, that is, again, not in touch with reality or the way things really are.” Opsahl concluded that the defendant, who had a full scale IQ of 79, had a degree of intelligence that bordered on mental retardation.
Furthermore, given this psychological and neuro-psychological profile of the defendant, it is easy both to discern the steps that led up to his decision to represent himself and to understand that he did not make this decision competently or voluntarily, as we understand those terms. He had been incarcerated for nearly one year under oppressive prison conditions. His fellow inmates screamed at him and threatened his life, and he had to be locked in a separate cell for his own protection. Such an environment, the equivalent of solitary confinement, could be devastating even for a person without the defendant’s psychological problems. *867Moreover, the defendant’s only source of help—his attorneys—had been appointed by the same state that was prosecuting him for his alleged crimes. These attorneys repeatedly told him, even after he had been in prison for one year, that they were not ready to represent him or to go to trial. With these pressures on the defendant, it is understandable from his perspective why he opted for a speedy trial, which in turn triggered his decision to waive the right to counsel and to represent himself. On the basis of this record, the trial court should have granted the defendant’s motion for a mistrial.
B
Moreover, the trial court should have granted the defendant’s motion for a mistrial on the basis of what had occurred during the time that the defendant represented himself. Indeed, although the defendant represented himself only through the first day of the presentation of evidence, it is apparent from the record that his attempts at jury selection and cross-examination were total disasters that irreparably affected the remainder of his trial and prejudiced his defense.
The defendant’s use of peremptory challenges obviously was not informed. He accepted one individual as a juror without asking any questions whatsoever, because he was under the mistaken impression that he was required to accept at least one prospective juror per day.8 Moreover, although the defendant had been *868allotted thirty peremptory challenges, he had exhausted his allotment before even the fifth juror had been selected, and the trial court denied his request for additional peremptory challenges. In effect, the defendant’s ignorance of the proper and strategic use of the peremptory challenge prohibited him from rejecting more than one half of his eventual jurors for any reason other than cause. This ignorance of the selection procedures obviously was prejudicial to his defense. Indeed, as the majority points out, the prosecutor, in the interest of justice, agreed at one point to dismiss an obviously state oriented juror for cause because the defendant had no more peremptory challenges he could exercise.
Standby counsel offered little or no help to the defendant during this phase of the proceedings. Their involvement was so limited that the prosecutor, concerned that this was a capital felony prosecution for which the state was seeking the death penalty, asked the court to require them to take a more active role and to assist the defendant in the jury selection. The prosecutor stated that “[w]hat we are doing is we are prosecuting somebody for a crime that has occurred in the city of Bridgeport and it is the state’s position that what has happened thus far is inadequate and inappropriate and I would ask that the court enter orders seeing that Mr. Day receives continuing and more active legal representation.”9 (Emphasis added.) Indeed, by *869calling his concerns to the attention of the trial court, the prosecutor was acting in the highest traditions of the profession. See Rules of Professional Conduct 3.8, comment (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice ----”).
Despite the remarks of the prosecutor, however, the defendant’s attorneys indicated that they remained unprepared to assist him, just as they had been when he had filed his pro se motion for a speedy trial. One of the public defenders informed the court that “[w]e are not any more prepared today to provide him with effective representation than we were three weeks ago *870and the fact that we have now been appointed standby-counsel has not somehow made us more prepared.” Furthermore, they indicated that they interpreted Connecticut law to require them to take such a limited role.10 Indeed, the attorneys took exception to the trial court’s order for them to issue subpoenas on behalf of the defendant, on the basis that they were not the attorneys of record for the defendant and did not have appearances in the file.
The defendant’s attempt at cross-examination also was devastating. One of the four witnesses called by the state on that first day of the presentation of evidence was Gloria S., who shared an apartment with the defendant and the victims and who had discovered three of the bodies. During the defendant’s cross-examination of her, she responded with several outbursts. Amid questioning from the defendant in front of the jury, her responses at various times included “Oh God! Help me!” and “I can’t take this!” She also called the defendant a “son of a bitch!” At no time did the defendant or his standby counsel request, nor did the court on its own give, a cautionary instruction to the jury that it should disregard the outbursts.
Moreover, the defendant elicited damaging statements from Gloria S. during cross-examination. She had testified on direct examination that, upon finding the bodies, she also discovered Marcus G., the two year old son of one of the victims who appeared to have a bruise on his face but was otherwise unhurt. The defendant elicited on cross-examination that Gloria S. had asked Marcus what had happened. “I asked *871Marcus, I said, ‘Marcus, what happened? Did Marty do this to you?’ I know Marty is already dead. He said, ‘Yes, Marty do this to me.’ I said, ‘Did Jason [the defendant] do this to you?’ He said, ‘Yes, Jason hurt me.’ ” Such a statement, which clearly implicated the defendant, certainly was prejudicial to the defendant’s case. Nevertheless, the majority passes off this hearsay testimony as not being prejudicial because “[djefense counsel does not suggest . . . that these statements actually would have been barred.” In support of its summary analysis of this issue, the majority suggests that the testimony might fit the “spontaneous utterance” exception to the rule against hearsay or the residual, catchall exception to the rule.
I disagree with this analysis of whether the statements were prejudicial to the defendant for two reasons. First, the issue of whether the hearsay statements of the child would have been admissible is wholly separate and distinct from the issue of whether the defendant was prejudiced by his own attempts at self-representation. Ordinarily, we consider the admissibility of hearsay in the context of the state’s attempt to introduce hearsay statements into evidence over the timely objection of the defendant. In this case, however, the statements were not introduced by the state. Indeed, the state probably did not attempt to do so because it recognized that these statements would not be admissible under our rules of evidence. Rather, these statements were repeated in front of the jury solely because of the ineptitude of the defendant in acting as his own attorney. As such, an analysis that hinges on the admissibility of the statements is inappropriate.
Second, the majority’s suggestion that these statements of the child would nevertheless be admissible over proper objection stands two recognized hearsay exceptions on their heads and implicates the confrontation clauses of the United States constitution and our *872own state constitution. In determining whether a hearsay statement is admissible as a spontaneous utterance, “[t]he ultimate question is whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.” Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342, 160 A.2d 899 (1960). A “mere [recital] of a past event”; id., 341; or “the narrative of a past event” is inadmissible under this exception. Wade v. Yale University, 129 Conn. 615, 618, 30 A.2d 545 (1943). The underlying rationale for the admissibility of these statements is that they are trustworthy. Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 314, 268 A.2d 639 (1970); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.11.2, p. 373.
The utterances of the two year old child, Marcus G., do not satisfy these requirements. The witness, Gloria S., testified that she had asked leading questions of the child, suggesting to him the names of people who might have committed the crimes. I can find no Connecticut case (and I doubt whether one exists in any other jurisdiction) in which the court properly admitted as a spontaneous utterance a declarant’s statement that was made in response to a series of leading questions. Moreover, the child’s responses were completely inconsistent with one another.11 Gloria S. testified that she twice had asked the two year old who had been responsible for the crime scene, and that each time he had given a completely different response. The child first named “Marty,” who was deceased, as the perpetrator, but then named the defendant. Indeed, the questions Gloria S. used to interrogate the child demonstrate that even *873she did not have confidence in the child’s answers. She explained that she first had chosen to ask Marcus G. if the crimes had been committed by Marty, yet she acknowledged that she had known when she asked that question that “Marty was already dead.” She explained during her testimony that she had done so because “I wanted to see if he could distinguish the two.” Obviously, even Gloria S. doubted the child’s ability to identify the perpetrator correctly and then recall that person’s name, and the child’s contradictory responses indicated that he could not do so. Under these circumstances, the statements of the two year old child do not qualify as either spontaneous, unreflective or trustworthy.
The majority’s reliance on State v. Stange, 212 Conn. 612, 563 A.2d 681 (1989), as supporting its application and interpretation of the spontaneous utterance exception, is misplaced. In Stange, the statement admitted into evidence neither was made in response to a leading question nor was it inconsistent with a prior statement of the declarant. In that case, the witness was a police officer who had come upon a victim of a shooting. The police officer told the court that when he “asked the victim who had shot him, [the victim] gestured toward the defendant’s house and said, Tom Stange.’ He also gave [the police officer] a description of the defendant.” Id., 615-16. As indicated above, the form of the questions and the answers given by the hearsay declarant in this case were very different.
Likewise, the majority cannot rely on the residual, catchall exception to the rule against hearsay. See generally C. Tait & J. LaPlante, supra, § 11.25, p. 414. “Under the catch-all exception a court may admit a statement that is technically hearsay and does not fall within the traditional hearsay exceptions, provided: (1) there is a reasonable necessity for the admission of such statement, and (2) the statement is supported by *874an adequate basis of assurance that the evidence has those qualities of reliability and trustworthiness attributed to other evidence admissible under long-established exceptions to the hearsay rule.” (Internal quotation marks omitted.) State v. Boyd, 214 Conn. 132, 140, 570 A.2d 1125 (1990), on appeal after remand, 221 Conn. 685, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344,121 L. Ed. 2d 259 (1992).12 For the reasons I have indicated, the statements of the two year old child do not contain an adequate basis of assurance that they were either reliable or trustworthy. Furthermore, there has been no demonstration, in the trial court or in this court, that there was a “reasonable necessity” for their admission into evidence. As noted above, the state did not even attempt to admit the child’s out-of-court utterances into evidence during its direct examination of the witness. The majority, therefore, cannot justify the admission into evidence of the child’s statements under the test set forth in Boyd. Indeed, I fear that the majority’s expansion of the catchall exception to accommodate the facts presented by this case may have undesirable repercussions in future cases.
Finally, under the circumstances presented by this case, the admissibility of the hearsay statements, over proper objection, would implicate the defendant’s constitutional right to confront the witnesses against him. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) (“In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is *875admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”).
C
At the end of the first day of trial, at the request of the defendant, the court reappointed standby counsel as his attorneys. By that time, however, the damage already had been done. The jury had been selected and crucial witnesses had testified. Equally important, the public defenders, upon being reappointed, again emphasized to the trial court that they still were not prepared to go forward with the trial. They explained that their heavy case loads and obligations to other indigent clients had prevented them from preparing for the trial of the defendant.13 Some of their other clients, for example, had been arrested or charged long before the defendant in this case and had not yet gone to trial.14 Moreover, the public defenders advised the court that they had done little to prepare for the trial after the court allowed the defendant to represent himself. At that point, according to the attorneys, “[a]ll legal research ceased. All investigation ceased. Communication with our client other than on a standby role, other than [the defendant] addressing us for some specific questions, was the only communication we had.” *876Indeed, once the defendant had begun to represent himself, the state had forwarded all discovery materials directly to him, bypassing the public defenders. The trial court, faced with such a record, should have declared a mistrial.
Ill
The majority concludes that “[t]he defendant in this case was not entitled to a mistrial simply on the basis of his attempt at, and then abandonment of, self-representation. Indeed, to a large extent, the defendant assumed the very risk when he elected to represent himself of which he now complains.” Yet the defendant, whose intelligence level borders on mental retardation, who has serious psychological and neurop-sychological problems, who had never before been to trial, and who had been confined for nearly one year under conditions equivalent to solitary confinement, cannot be judged by the same standards as we would judge a college professor. He obviously made his decision to represent himself because the system had failed him.
Furthermore, there is not a scintilla of evidence, nor does the state even suggest, that the defendant was attempting to manipulate the system by moving for a speedy trial and then asking to represent himself. Moreover, there is no indication that his disastrous attempts at jury selection and cross-examination were somehow calculated to delay or hinder justice. The defendant was not a savvy career criminal, but, rather, a person with limited intelligence and serious psychological and neuropsychological problems who was faced for the first time with the intricacies of presenting a defense in a trial by jury.
Most importantly, this case must be viewed through the lens that the state was seeking the death penalty for these murders. The state, in seeking to pursue the *877death penalty, must furnish the indigent with competent representation. As any trial lawyer or judge can attest, no matter how professionally competent an attorney may be, unless the attorney is adequately prepared, the defendant is not being afforded competent representation. See Siemon v. Stoughton, 184 Conn. 547, 556, 440 A.2d 210 (1981) (“inadequate pretrial investigation is sufficient to constitute ineffective assistance of counsel”); Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992) (“[t]he failure to conduct an adequate investigation cannot be excused in the penumbra of trial tactics”). Capital felony trials, which may result in the defendant being sentenced to death or to life in prison without any possibility of release, require not only substantial investigation but also substantial preparation for trial. In this case, the attorneys clearly were not given adequate time because of the demands of their other duties as public defenders. If the state intends to pursue the death penalty, it must furnish to an indigent defendant not only a professionally competent attorney, but also one who has sufficient time to investigate and prepare his case. The state must bear the responsibility for the lack of preparedness that worked against the defendant so disastrously in this case. The defendant’s decision to proceed pro se was directly related to the inability of his court-appointed attorneys, because of their heavy case load, to prepare his defense properly and to proceed to trial.
“Timely appointment and opportunity for adequate preparation are absolute prerequisites for counsel to fulfill his constitutionally assigned role of seeing to it that available defenses are raised and the prosecution put to its proof.” Brescia v. New Jersey, 417 U.S. 921, 924, 94 S. Ct. 2630, 41 L. Ed. 2d 227 (1974) (Marshall, J., dissenting). Indeed, the United States Supreme Court has held that a state’s obligation to provide coun*878sel is “not discharged by an assignment at such time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Powell v. Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 77 L. Ed. 158 (1932). In the words of Justice Thurgood Marshall: “It is axiomatic that ‘[t]he defendant needs counsel and counsel needs time.’ Hawk v. Olson, 326 U.S. 271, 278 [66 S. Ct. 116, 90 L. Ed. 61] (1945). Here, counsel did not have ‘time’ and as a result [the] defendant may well have been deprived of his right to the adequate assistance of counsel guaranteed by the Constitution.” Brescia v. New Jersey, supra, 926 (Marshall, J., dissenting).
Accordingly, I would reverse the judgment of the trial court and order a new trial.
The defendant was arrested by federal agents on a charge of unlawful flight in violation of 18 U.S.C. § 1073.
See footnote 14 of the majority opinion.
Practice Book § 963 provides: “When a defendant has been permitted to proceed without the assistance of counsel, the judicial authority may appoint standby counsel, especially in cases expected to be long or complicated or in which there are multiple defendants.”
The trial court formally appointed only one public defender, Patrick J. Culligan, as standby counsel for the defendant after he elected to represent himself. The transcripts and the record indicate, however, that another public defender, William Holden, appeared at trial with Culligan and also assisted the defendant. Moreover, Culligan’s comments to the trial court indicate that both he and Holden were assisting the defendant during this time. Accordingly, I refer to both Culligan and Holden as standby counsel.
The motion for mistrial filed by the defendant’s attorneys read as follows: “MOTION FOR MISTRIAL
“Pursuant to Practice Book § 887 the defendant respectfully requests that the Court declare a mistrial in the trial of the instant case. The defendant asserts that a mistrial is required because of events which have transpired both inside and outside of [the] courtroom which have resulted in substantial and irreparable prejudice to the defendant’s case.
“In support of his motion the defendant states the following:
“1. On March 6,1991, the Court granted the defendant’s pro se motion for a speedy trial over the objection of the defendant’s attorneys who informed the Court that they were not prepared to proceed to trial;
“2. On March 26,1991, the Court granted the defendant’s motion to proceed as a pro se defendant and appointed the defendant’s former attorneys as standby counsel pursuant to [Practice Book] § 962;
“3. The defendant engaged in jury selection and a ‘death-qualified’ jury was empaneled.
“a. [The] Defendant’s present attorneys did not voir dire any of the jurors.
“b. Certain veniremen who expressed reservations about their ability to participate in a proceeding and to render a decision which would result in the defendant receiving a death sentence were excused by the Court without sufficient questioning concerning their willingness to follow their oaths and juror’s duties.
“c. The defendant expended his allotted 30 peremptory challenges before the fifth juror was chosen and the Court denied the defendant’s request for additional peremptory challenges.
“4. The defendant argued a Motion for Change of Venue which was denied by the Court.
“a. The defendant did not have the opportunity to conduct a public opinion survey;
“b. The defendant did not introduce any media circulation, broadcast range and viewer population data;
*861“c. Due to this lack of information, the defendant did not have the ability to demonstrate that some other judicial district venue would provide a more neutral forum for the trial.
“5. The defendant argued a Motion to Suppress his statements to certain FBI officials which was denied by the Court.
“a. The defendant did not address the issue of the voluntary waiver of his Miranda rights during the presentation of evidence and argument.
“b. The State did not honor the standing discovery order to disclose admissions of the defendant prior to the hearing in that the State had not disclosed the contents of the defendant’s telephone call to Elvira Pierce which was testified to by special agent Richard Hoskins. This issue was not addressed by the defendant.
“6. The Court granted the State’s Motion for Production of Non-testimonial Evidence and the defendant subsequently refused to comply with the Court’s order. The defendant’s present attorneys were not able to advise and request him to comply with the Court’s order because of their status as stand-by counsel, which prohibits the giving of unsolicited advice.
“7. The State presented four witnesses on the first day of trial while the defendant was still proceeding pro se.
“a. The defendant did not confer with stand-by counsel before conducting cross-examination of the witnesses.
“b. The defendant elicited several very prejudicial statements from witness Gloria [S.J during cross-examination. [Gloria S.’] cross-examination testimony concerning the alleged statement of the two-year-old victim, [Marcus G.], wherein he accused the defendant of hurting him was only placed in evidence as the result of the defendant’s cross-examination as it had not been the subject of [Gloria S.’] direct testimony in any manner or fashion.
“8. The defendant’s attorneys stopped all preparation for trial on March 26, 1991, when the defendant elected to proceed pro se.
“a. Discovery was not complete as of March 26, 1991, in that the State continued to supply the defendant with discovery after March 26, 1991.
“b. The defendant’s attorneys have not reviewed and analyzed any of the discovery materials submitted by the State to the defendant after March 26, 1991.
“9. The defendant has repeatedly stated that one of his reasons for electing to proceed pro se was his disagreement with defense counsel concerning appropriate trial strategy. Since March 6, 1991, when the defendant *862requested a speedy trial until today, the defendant and defense counsel have not agreed upon trial strategy.
“10. The defendant submitted a list of defense witnesses to the Court on the opening day of trial for the purpose of requesting the Court’s assistance in having the witnesses subpoenaed to testify in his behalf.
“a. Because of his indigency and because he is incarcerated in lieu of bond, the defendant requested the assistance of the Court to subpoena his witnesses.
“b. The State was given a copy of the defendant’s witness list by the Court, “c. The Court did not inquire of the defendant if the defendant wished to divulge his witness list to the State.
“d. Pursuant to the rules of practice, the defendant was under no obligation to divulge his list of proposed witnesses to the State.
“The defendant asserts that the above-described events individually and in their totality constitute events and conduct which have created substantial and irreparable prejudice to his case. The defendant urges that the Court declare a mistrial, discharge the jury and return the defendant’s capital felony prosecution to the jury list to await his trial in the normal course of docketing.”
For two reasons, I disagree with the majority’s assertion that, even if the trial court’s discretion is narrower in death penalty cases, we should apply that stricter standard upon review only if the defendant ultimately was sentenced to death. See footnote 19 of the majority opinion. First, upon appellate review, we should consider the trial court’s decision whether to grant the motion for mistrial as a moment frozen in time. At that moment, the state is attempting to have the defendant put to death, and the defendant is moving the court to declare a mistrial and start afresh. The trial court’s denial of the defendant’s motion at that moment tips the scale in favor of the state’s attempt to put him to death. For this reason, I believe that we must review the decision of the trial court without regard to whether the defendant, at some later point, was saved from a punishment of death.
Second, but equally important, the majority’s position disregards the fact that even if a capital defendant’s life is spared during the sentencing phase, the mere conviction of a capital felony means that he will face a sentence that is fundamentally different than that imposed on other criminal defendants in this state. A sentence of “life imprisonment” means a definite sentence of sixty years in prison. General Statutes § 53a-35b. A person so sentenced may be released on parole before the expiration of the sixty years. General Statutes § 54-125a (a). In capital felony cases, however, a defendant who is spared the death penalty is required by statute to be sentenced to spend the rest of his natural life in prison without the possibility of release. General Statutes §§ 53a-35a (1), 53a-35b and 54-125a (b). Thus, even if a capital defendant’s life is spared during the sentencing phase, he will be deprived of any opportunity for release.
See footnote 10 of the majority opinion.
Opsahl explained the difference between these two types of analysis. “Neuropsychological testing involves attempting to evaluate possible brain injuries, difficulties in behavior or thinking that people might have as a result of head injuries, for instance, sustained in motor vehicle accidents, head injuries sustained in fights or in falls. . . . Psychological testing, on the other hand, is more concerned with the area of personality problems, personality functioning, psychological issues or problems which do not have a basis for which are not caused by brain injuries per se, body injuries.”
The defendant had heard the phrase “one day, one trial,” and misconstrued this to mean that he was obligated to select at least one juror during each day of jury selection. Thus, at the end of the first day of jury selection, when the defendant had not yet selected any jurors, he accepted the day’s final prospective juror without asking a single question. The following day, when the defendant’s standby counsel explained the misunderstanding to the court, the prosecutor indicated that he had no objection to allowing the defendant to reexamine the chosen juror. The defendant did so, and used a peremptory challenge to disqualify the juror.
The entire remarks of the prosecutor, assistant state’s attorney Jonathan Benedict, were as follows: “I don’t want either the court or Mr. Day or counsel to get the impression that the state is in a rush about this, because we are not, we are certainly willing to stand by and wait for all the time it takes for the defense to accurately defend Mr. Day.
“In view of the seriousness of the charge and the possible punishment in this case where I think there is concern that Mr. Day receive a fair trial as any other party of this courtroom, however, I think perhaps now is—we are at the point—because the state is confused and I think obviously Mr. *869Day is confused and his counsel also are confused as to exactly what is the nature of any legal representation Mr. Day has.
“I think that while the public defender’s office may have one opinion as to what that type of a representation should be, I think that is something that at this point should be determined by the court and I think it should be determined with—obviously in view and the nature of the charges and the possible punishment in this case, and I think in an attitude that all we have to do under these circumstances is sit back and let him represent himself is inappropriate and the longer we do this would not be at all fruitful no matter what the outcome of the case is.
“I think at this point it is appropriate that as Mr. Day continues to insist on representing himself, that nevertheless the public defender’s office has been appointed previously, and for a long time, to defend Mr. Day in this case and I think that their efforts from this point on should be more than mere standby and will answer questions if he has questions. It is rather apparent that he does not have either the funds nor the freedom or the time to do all that has to be done for him in his defense. He has two lawyers, one sitting on either side of him as he has had for three or four weeks during the pendency of this trial.
“I think it is appropriate from this point on that the defense be somewhat more active no matter what the public defender’s office thinks that their appropriate stance be. What we are doing is we are prosecuting somebody for a crime that has occurred in the city of Bridgeport and it is the state’s position that what has happened thus far is inadequate and inappropriate and I would ask that the court enter orders seeing that Mr. Day receives continuing and more active legal representation.”
Practice Book § 964 provides: “If requested to do so by the defendant, the standby counsel shall assist the defendant. If there is no objection by the defendant, such counsel may also call the judicial authority’s attention to matters favorable to the defendant. Such counsel shall not interfere with the defendant’s presentation of the case and may give advice only upon request.”
It concerns me that the majority focuses merely on the leading question and the child’s answer to that question. The majority never acknowledges that the previous leading question asked of the child elicited a completely contradictory response from him.
The majority cites an earlier case, State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985), for its explanation of the catchall exception to the hearsay rule. Because State v. Boyd, supra, 214 Conn. 132, is a more recent case of this court, and because the language of that case differs slightly from the language employed in the earlier case, I refer to the test as set forth in Boyd.
The attorneys explained their conflicting obligations to the trial court during a hearing on their motion for a mistrial. Between July, 1990, and May, 1991, one of the attorneys tried four other jury trials that occupied approximately three and one-half to four months. The other attorney tried a capital felony case that occupied approximately two and one-half to three months, and also represented defendants in ten to twelve other capital felony cases.
One criminal defendant being represented by one of the public defenders had been arrested one year before the defendant in this case and had been charged with capital felony, but still had not gone to trial as of May, 1991.