State v. Wolff

BERDON, J.,

dissenting. I would affirm the Appellate Court’s decision that the defendant be granted a new trial on the alternate ground that the trial court should have ordered a competency hearing prior to permitting the defendant to waive his right to counsel. Because this issue was not raised at trial, the court engages in *672a Golding1 review to determine whether it can be raised on appeal. Although the majority concedes that the issue involves a claim of constitutional magnitude and that the record is sufficient, they refuse to review the claim because a violation does not clearly exist. I disagree.2

The trial court has an obligation to undertake an independent judicial inquiry to determine if the defendant is competent. State v. Lloyd, 199 Conn. 359, 366, 507 A.2d 992 (1986). That obligation not only extends to whether the defendant is competent to be tried; id.; but also whether he is competent to waive his right to counsel. See Godinez v. Moran, 509 U.S. 389, 398, 113 S. Ct. 2680,125 L. Ed. 2d 321 (1993) (standard of competency for pleading guilty or waiving right to counsel is same as competency standard for standing trial). Before it may allow the accused to proceed through the treacherous path of self-representation, and throughout the course of the proceedings, a trial court is obliged to determine whether he is competent to waive his right to counsel. Id., 399-400.3

As a result of our chaotic procedure of constantly reassigning trial judges, a defendant, as in this case, may appear before several judges during preliminary proceedings and before yet another different judge for trial. In order to afford the defendant due process of *673law, it only stands to reason that his claim must be measured by the collective knowledge of the trial judges he appeared before. Nevertheless, in this case, the individual knowledge of several of the trial judges was sufficient to alert them that they were required to suspend the pretrial and trial proceedings in order to determine the defendant’s competency.

Recently, in State v. Day, 233 Conn. 813, 661 A.2d 539 (1995), this court held the following: “While a defendant has an absolute right to self-representation, that right is not self-executing. A trial court in this state must satisfy itself that several criteria have been met before a criminal defendant properly may be allowed to waive counsel and proceed pro se. A waiver [of the right to counsel] will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant: (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled; (2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself; (3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) Has been made aware of the dangers and disadvantages of self-representation. Practice Book § 961.

“At the same time, we have recognized that this test cannot be construed to require anything more for an effective waiver of counsel than is constitutionally mandated, because such a waiver triggers the constitutional right of an accused to represent himself. . . . The multifactor analysis of § 961, therefore, is designed to assist the court in answering two fundamental questions: first, whether a criminal defendant is minimally competent to make the decision to waive counsel, and second, whether the defendant actually made that deci*674sion in a knowing, voluntary and intelligent fashion.” (Citations omitted; internal quotation marks omitted.) Id., 822-23.

In my view, there was substantial evidence to indicate that the defendant may have been mentally impaired, and thus unable to waive his right to counsel in a knowing and intelligent fashion. Consequently, the trial court should have ordered a competency hearing pursuant to General Statutes § 54-56d. The majority’s focus on the facts, which allows it to reach its conclusion, is so narrow that it defies credulity. Despite the following information, which the trial court had before it, the majority claims that there was insufficient evidence to review the defendant’s claim.

First, a police officer’s own version of the defendant’s bizarre conduct, which led to his arrest in this case, is telling of the defendant’s mental instability and possible incompetency. According to Stephen J. Miele, an officer with the Hartford police department, on May 26, 1992, the defendant, for some unknown reason, began shouting vulgarities at him and Laura Buyak, another Hartford police officer, who were in the process of arresting an unrelated individual. When the officers approached the defendant to ask him to calm down and to explain why they were arresting the other individual, he physically lashed out, striking Miele in the chest. The defendant continued to flail his arms, causing the two officers and himself to fall down a flight of stairs, thereby knocking Buyak unconscious. The defendant continued to punch Miele and attempted to bite him. Ultimately, the defendant was overpowered and handcuffed.

Second, as known by one of the pretrial courts and the trial court, the defendant had a history of mental illness and had a prior conviction of assaulting and kidnapping his parents, an event which illustrated his *675mental illness.4 As a senior in high school, the defendant began seeking treatment from a psychiatrist. A few years later, after leaving college, the defendant suffered a “psychotic decompensation,” i.e., a nervous breakdown. Subsequently, the defendant was diagnosed as a “schizo-effective” and underwent several psychotic hospitalizations and outpatient treatments.

Third, the defendant explained his actions and based his defense on his belief that the Hartford police force *676was conspiring to harass him and have him evicted from various homeless shelters in Hartford. The defendant had been arrested on two previous occasions for assaulting various Hartford police officers: the defendant allegedly assaulted Albert DeStefano on December 20,1991, because DeStefano wished him a Merry Christmas; and the defendant allegedly assaulted Frederick J. Reinert on March 3, 1992, when the defendant tried to elude questioning. Only the incident that occurred on May 26,1992, involving Miele and Buyak, was at issue in this case. Nevertheless, the defendant’s unfounded paranoid defense presented at trial, which discussed the details of these separate incidents, opened the door for the admission of highly prejudicial evidence.

Fourth, after reading the entire transcript of the trial, it is apparent to me that a competency hearing was warranted. Certain exchanges and comments made by the defendant indicate his possible incompetence. For example, when informed by the court that DeStefano would not be available as a witness because he had recently left on vacation, the defendant responded: “Your Honor, that ... is completely unjust. I mean, DeStefano — I base my whole case on DeStefano. I say the man has a personal vendetta against me. And I say he’s . . . the criminal in this situation. I mean, he’s the one that knew . . . the trial was about to start. He’s playing his cards perfectly. He’s very smart. Now he’s getting away with this. He ... he was here last week. He knew the trial was about to start. And he left on a Friday, and . . . today is Monday.”

A second example of the defendant’s paranoia and disjunctive thinking occurred while he was questioning Ramona Rucker, a security guard at the Civic Center mall:

“Q. Would you say that I’m capable of running?
“A. Yes you are. Yeah.
*677“Q. Would you say that I’m capable of running faster than you?
“A. I don’t know. I’ve never chased you.
“Q. Are you saying that I’m a coward?”

As a third illustration, in his closing argument to the jury, the defendant stated: “You’ve heard my testimony, which I hope you found to be warm, calm and spontaneous. I am alone here, but only in appearance. I have had help from millions, upon millions of people in a subtle and undeniable way.”

Indeed, during his redirect examination of police officer Sergio Khuzkian, the defendant asked the witness to state his opinion of him. Khuzkian responded: “Mr. Wolff, you’re not a well man, in my opinion from where I know you. As a matter of fact, I think [you are] crazy, and I think that you need some kind of mental help. And for me to sit here and have you question me I find ridiculous. From where I see you, from the point where I first met you, who was a man who was down and out on his luck, to a point where you’ve gone totally insane, to the point where you don’t even recognize me and you swear at me. You’re constantly abusive to people downtown, to the officers, and you constantly — and it’s like — like—it’s obvious that everybody knows you because of your actions. And I’m there five days a week, and I see you there five days a week. I see you downtown acting in an insane manner.”

Furthermore, after the verdict was returned, but before passing sentence, the trial court ordered that the defendant undergo a sixty day psychiatric examination at Whiting Forensic Institute. Subsequently, Carol Caplan, a member of the psychiatric team that evaluated the defendant at Whiting, testified that the defendant’s mental condition had evolved and that he presently suffered from a paranoid disorder, which caused him *678to be “a high risk of dangerousness to himself or to others when his paranoid disorder is most severely out of order.” As a result of that condition, Caplan observed that the defendant’s thinking was illogical and that “[h]e often draws illogical conclusions.” Nevertheless, because the defendant refused medication that was prescribed to him, the psychiatric team recommended that he be sentenced in accordance with his conviction. In passing sentence, the trial court noted that the defendant “has specifically and unequivocally stated [that] he will not take medication, and that is what he needs.” The court then accepted the recommendation of the Whiting Forensic Institute and committed the defendant to the custody of the commissioner of correction for a period of ten years.

Under these circumstances, the thought of allowing the defendant to waive his right to counsel without adequately determining his competency is alarming. When information of this sort and volume comes to the attention of the trial judge, he or she is required to conduct an independent inquiry to determine the defendant’s competency before allowing the defendant to waive his or her right to counsel. Likewise, during a trial in which a defendant is representing himself, the trial court may be obliged to reevaluate its order regarding the waiver of counsel. See State v. Lloyd, supra, 199 Conn. 365.

I also question the majority’s imputation of some import to the fact that the defendant completed two and one-half years of college and the fact that he is not currently receiving psychiatric treatment or taking medication. I find neither of these facts insightful into whether an individual may be competent to waive his or her right to counsel. Certainly there are highly educated individuals who, due to mental illness, are incompetent. Likewise, there are certainly individuals who suffer from mental illness who are not taking medication that *679may in fact cure or minimize their illness and render them competent. See State v. Garcia, 235 Conn. 671, 669 A.2d 573 (1996). Indeed, in this case, the trial court noted that “one thing that [the defendant] needs is medication.”

Accordingly, I would affirm the Appellate Court’s order that the defendant be granted a new trial.

State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989) (certain unpreserved claims may be raised on appeal).

I note that there are some constitutional claims involving fundamental rights, such as the right to counsel, that should not be subject to Golding scrutiny because the violation of the right is patently obvious in its deprivation. Moreover, as in this case, it defies logic and reason to believe that the defendant should seek a competency examination of himself to determine whether he is competent to waive his right to counsel.

I recognize that “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” (Emphasis in original.) Godinez v. Moran, supra, 509 U.S. 399.

“On December 28, 1989, the defendant was living with his parents, Gunther and Elvira Wolff, at the family residence at 438 Fern Street, West Hartford. Gunther Wolff, a sixty-five year old self-employed engineer, was working in his second floor study at about 4 p.m. when the defendant entered the study. The defendant told Gunther that he wanted to use some of the tools that Gunther had stored there. When his father declined to permit the defendant access to the tools, the defendant attempted to obtain them by force, throwing his father to the floor and keeping him pinned down to the floor by kneeling on his legs. During the next forty-five minutes, approximately, the defendant kept his father pinned to the floor, lectured him, and occasionally banged his head against the floor.

“At about 4:45 p.m., Elvira Wolff, who had been out, returned to the house. Alerted by noise upstairs, she entered the study on the second floor and saw her husband and the defendant on the floor. She screamed and attempted to pull the defendant off of his father. The defendant then verbally and physically assaulted his mother for a period of about sixty minutes. The defendant yelled at her and slapped her across the face and chest a number of times. Both victims wanted to leave the room, but were afraid to attempt to do so. Although there was a telephone in the room, neither victim attempted to use it. The defendant positioned himself between his parents and the door so that they could not leave without going around him. At one point, the defendant’s father attempted to smash a window in the study in order to summon help, but was unsuccessful.

“The defendant’s mother told him that she expected guests for dinner and that she had to prepare the meal. The two victims and the defendant then went to the kitchen. Subsequently, the defendant’s father asked the defendant if he could take a walk in the neighborhood. The defendant replied that they could leave whenever they wanted. Both parents left the house, went to the nearest telephone and contacted the West Hartford police department. When the police responded, they found the defendant in the garage, working under the hood of an automobile. While his father was visibly upset, the defendant appeared calm and cooperative.” State v. Wolff, 29 Conn. App. 524, 525-27, 616 A.2d 1143 (1992).

The Appellate Court reversed the defendant’s conviction and ordered a new trial because the trial court’s instructions created a reasonable possibility that the jury was misled. Id., 533.