Argued January 26, 2016
Matthew A. Weiner, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne Mahoney and Denise B. Smoker, senior assistant state’s attorneys, for the appellant (state).
Mary Boehlert, assigned counsel, for the appellee (defendant).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and Vertefeuille, Js.
In State v. Connor, 292 Conn. 483, 487, 533, 973 A.2d 627 (2009), this court remanded the criminal case of the defendant, Jeffrey T. Connor, to the trial court with direction to reconsider the defendant’s competency to represent himself in light of a new standard that this court adopted in the defendant’s direct appeal. Following that remand, the trial court concluded that the defendant had been competent to represent himself, and the defendant challenged that decision before the Appellate Court as an abuse of discretion. See State v. Connor, 152 Conn.App. 780, 100 A.3d 877 (2014). The dispositive issue in the state’s certified appeal is whether the Appellate Court properly reversed the trial court’s judgment on the ground that the remand hearing was procedurally flawed. The state contends that the Appellate Court raised this issue sua sponte in derogation of Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 162–64, 84 A.3d 840 (2014) (Blumberg). We agree and, accordingly, reverse the judgment of the Appellate Court and remand the case to that court with direction to consider the issue raised in the defendant’s appeal.
The record reveals the following undisputed facts and procedural history. The defendant was charged with a number of crimes in connection with the abduction of his former wife. State v. Connor, supra, 292 Conn. 486, 488. The extensive pretrial proceedings reflected repeated attempts by the trial court to ascertain the defendant’s competency both to stand trial and to discharge his court-appointed counsel and represent himself. Id., 489. The defendant’s competency had been called into doubt due to the fact that he had suffered a debilitating stroke and exhibited signs of mental illness. Id., 490–91. The efficacy of these proceedings was complicated by the defendant’s refusal to cooperate with the medical professionals tasked with evaluating him and his intermittent unresponsiveness in court. Id., 491–92, 497. In reliance on the opinion of several medical professionals, the trial court, McMahon, J., concluded that the defendant’s refusal to cooperate was ‘‘ ‘volitional’ ’’; id., 495; and the trial court, Miano, J., thereafter concluded that the defendant was ‘‘malingering, ’’ and found him competent to stand trial. Id., 499.
The defendant’s case proceeded to trial before Judge Espinosa,  who similarly concluded that the defendant’s unresponsiveness during jury selection reflected his continued ‘‘ ‘malingering.’ ’’ Id., 500–501. The defendant explained that he had previously refused to cooperate because he did not want his appointed counsel to represent him, and requested that he be permitted to represent himself. Id., 501. After defense counsel summarized the history of the case with respect to the defendant’s competency and desire to represent himself, Judge Espinosa canvassed the defendant, asking him questions about, inter alia, his educational background and his ability to recall information pertinent to his case. Id., 501–502. Judge Espinosa ultimately concluded that the defendant was ‘‘competent to represent himself. He is articulate, he’s lucid, he knows what he’s doing. He . . . devised a calculated plan to disrupt the trial in front of Judge Miano because he wasn’t getting his way with his lawyer . . . .’’ (Internal quotation marks omitted.) Id., 503. Judge Espinosa therefore permitted the defendant to represent himself, but appointed his defense counsel as standby counsel. Id. A jury convicted the defendant on all but one of the charges against him. Id., 504.
The defendant directly appealed the judgment of conviction to this court claiming, inter alia, that Judge Espinosa had improperly found that he was competent to represent himself. Id., 505. At the time of the defendant’s trial, our courts were bound by federal case law that had indicated that ‘‘a [criminal] defendant who has been found competent to stand trial as a matter of state law . . . also is competent to waive the right to counsel. Application of a stricter competency test in the latter analysis than was used in the former would place an unconstitutional burden in the exercise of the defendant’s federal constitutional right of self-representation.’’ State v. Day, 233 Conn. 813, 825, 661 A.2d 539 (1995), overruled in part by State v. Connor, 292 Conn. 483, 528 n.29, 973 A.2d 627 (2009). While the defendant’s appeal was pending, however, the United States Supreme Court clarified that individual states may adopt standards for determining whether a defendant is competent to represent himself that are more demanding than the standard used for determining whether a defendant is competent to stand trial. See Indiana v. Edwards, 554 U.S. 164, 177–78, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). Accordingly, although a more stringent standard was not constitutionally mandated, this court elected to adopt such a standard in the defendant’s appeal pursuant to the exercise of our supervisory authority. State v. Connor, supra, 292 Conn. 528 n.28. Under this standard, when a trial court is presented with a mentally ill or mentally incapacitated defendant who has been found competent to stand trial; id., 527; a defendant’s competency to represent himself would depend ‘‘on his ability to carry out the basic tasks needed to present his own defense without the help of counsel . . . notwithstanding any mental incapacity or impairment serious enough to call that ability into question.’’ (Citation omitted; internal quotation marks omitted.) Id., 530.
The court noted, however, that ‘‘[b]ecause Edwards had not been decided prior to the conclusion of the trial in the present case, Judge Espinosa had no alternative, in light of our holding in State v. Day, supra, 233 Conn. 825, but to permit the defendant to represent himself once it was determined that he was competent to stand trial. We therefore do not know whether Judge Espinosa would have granted the defendant’s request to represent himself if she had had the authority to deny the request in accordance with Edwards and our holding in the present case. Consequently, the case must be remanded for a determination by the court, Espinosa, J., as to whether the defendant then was competent, notwithstanding any mental disability, to conduct the trial proceedings by himself. In making this determination, the trial court, which . . . is ‘best able to make [such a] fine-tuned mental capacity [decision], tailored to the individualized circumstances of a particular defendant’; Indiana v. Edwards, supra, 554 U.S. 177; should consider any and all relevant information, including, but not limited to, the extent to which the defendant’s competence to represent himself may have been affected by mental illness, by the stroke that he had suffered, and by any memory problems that he may have experienced as a result of that stroke. The court also should evaluate the extent to which the defendant may have been feigning mental problems. Because of the defendant’s refusal to cooperate with the various evaluation teams that had been assembled to assess his competency, it is difficult to discern whether the defendant suffered from a mental illness that, alone or in combination with his stroke, may have rendered him incompetent to represent himself. Accordingly, the trial court may seek to have the defendant examined again if it appears that such an examination would be helpful in resolving the issue presented on remand.’’ (Footnotes omitted.) State v. Connor, supra, 292 Conn. 528–29. The court noted that, if the trial court elected to do an evaluation and the defendant persisted in refusing to cooperate, ‘‘the trial court would have no choice but to make a determination concerning the defendant’s competency to represent himself at the trial that is limited generally to its recollection of the proceedings and its review of the trial transcript and arguments of counsel.’’ Id., 529 n.31.
In early 2011, Judge Espinosa began the remand proceedings, but was elevated to the Appellate Court before they could be completed. See footnote 2 of this opinion. In September, 2011, Judge Schuman assumed responsibility for the remand proceedings. In January, 2012, Judge Espinosa executed an affidavit based on her recollections of the defendant’s trial. Judge Espinosa’s affidavit stated, inter alia, that the defendant had ‘‘appeared to be engaged in every aspect’’ of his trial, had ‘‘demonstrated an understanding of the evidence presented, ’’ and had ‘‘carried out the basic tasks needed to present his own defense in a manner similar to other self-represented’’ parties that had appeared before her. She acknowledged that the defendant had made certain ‘‘irrelevant’’ statements, but opined that they appeared to be calculated attempts to elicit sympathy from the jury. Judge Espinosa further attested that the defendant had ‘‘demonstrated that he was sufficiently capable of carrying out the basic tasks needed to present his own defense without the assistance of counsel.’’
Judge Schuman subsequently held two hearings. At the first hearing, Judge Schuman outlined his plan to make a determination regarding the defendant’s competency to represent himself on the basis of the trial transcripts, Judge Espinosa’s affidavit,  and oral argument from the parties. At the end of the hearing, Judge Schu-man appointed counsel for the defendant because he was unresponsive. At the second hearing, the court granted defense counsel’s request to admit the defendant’s medical records from the Department of Correction. At no point did anyone object to Judge Schuman conducting the proceedings or to the procedure proposed by Judge Schuman to make the competency determination.
Judge Schuman thereafter issued a memorandum of decision in which he determined that the defendant had been competent to represent himself at the time of his trial. Judge Schuman first set forth a summary of the defendant’s conduct during trial, gleaned from the trial transcripts. He then turned to the defendant’s medical records and explained why he had declined to give them any weight. He noted that the medical professionals who had formed opinions about the defendant’s competency to stand trial had not observed the defendant at trial and would not be helpful in assessing the legal question of whether the defendant could adequately represent himself despite any mental impairment. Finally, he set forth Judge Espinosa’s observations, as reflected in her affidavit. In his analysis, Judge Schuman acknowledged that the transcripts had revealed some troubling issues regarding the defendant’s ability to represent himself. Nonetheless, he concluded that the most serious charges against the defendant were not readily defensible and noted Judge Espinosa’s opinion that some of the defendant’s actions may have been attempts to gain sympathy from the jury. In conclusion, Judge Schuman noted: ‘‘Judge Espinosa has made the critical finding that the defendant, while lacking technical proficiency, could perform the basic tasks needed to defend himself without the assistance of counsel. That finding establishes that the defendant’s performance has met the ultimate standard that applies in this context. . . . The court must give considerable deference to this finding because Judge Espinosa heard the trial. Reading the transcript is no substitute for the opportunity, which only Judge Espinosa had, to observe whether the defendant had a reasonable understanding of how the trial process worked, to assess whether his occasional unor-thodoxy represented fumbling ineptitude or wilful strategy, and to measure just how well the defendant interacted with the jury. Based largely on Judge Espino-sa’s first hand assessment of the defendant’s performance, the court concludes that the defendant was competent to represent himself at trial.’’ (Citation omitted.)
The defendant appealed to the Appellate Court from the judgment, claiming in his brief to that court that ‘‘the trial court abused its discretion when it erroneously concluded that the [defendant] was competent to represent himself at trial despite his mental illness or mental incapacity.’’ Specifically, the defendant argued ‘‘that the evidence in this case . . . presents a substantial basis for the [trial court] to have found that [the defendant] was incompetent to represent himself at trial.’’ In support of that claim, the defendant cited the behavior and diagnoses documented in his medical records, the fact that his competency had been questioned on numerous occasions prior to trial, and his behavior at trial evidenced in the trial transcripts. In its ...