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State v. Burgos

Court of Appeals of Connecticut

February 7, 2017

STATE OF CONNECTICUT
v.
CHRISTOPHER BURGOS

          Argued September 22, 2016

         Appeal from Superior Court, judicial district of Hartford, Alexander, J. [motion for competency examination]; Dewey, J. [motion to suppress; motion to consolidate; judgment].

          Richard Emanuel, for the appellant (defendant).

          James M. Ralls, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Thomas Garcia, former senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Beach and Alvord, Js. [*]

          OPINION

          ALVORD, J.

         The defendant, Christopher Burgos, appeals from the judgments of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), one count of aggravated sexual assault of a minor in violation of General Statutes § 53a-70c (a) (1), and, in a separate information, one count of attempt to escape from custody in violation of General Statutes §§ 53a-49 (a) (2) and 53a-171 (a) (1). On appeal, the defendant claims that the trial court erred (1) by not sua sponte ordering pretrial and post-trial competency hearings and canvassing him on his purported right to testify at those hearings; (2) in joining the sexual assault information and the escape information for trial; (3) in denying his motion to suppress evidence seized from his apartment; and (4) in denying his motion to vacate his convictions for sexual assault in the first degree and risk of injury to a child on double jeopardy grounds. We affirm the judgment in part, and we reverse the judgment in part.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On August 31, 2011, the eleven year old victim and her sisters were sitting outside their home when the defendant approached them.[1] The victim did not know the defendant, but she recalled seeing him the day before. The defendant invited the victim and one of her sisters to go to the store with him to get candy. The victim agreed to go to the store with the defendant while her sister remained behind. Once the victim and the defendant were inside the store, however, the defendant said that he did not have any money on him to purchase anything. The defendant offered to call the victim's sister to ask if the victim could go with him to his apartment nearby to get some money. The defendant purportedly called the victim's sister and received permission for the victim to come with him, but when the victim asked to speak to her sister, the defendant said that her sister had already hung up the phone.

         The defendant and the victim then walked to the defendant's apartment, which was a few blocks away from where the victim lived. Once at the defendant's apartment complex, the victim told the defendant that she wanted to wait outside on the sidewalk for him while he retrieved his money. The defendant told the victim to go upstairs. When she refused, he pushed her upstairs and into his apartment on the second floor. The victim tried to scream for help, but the defendant covered her mouth. Once inside the defendant's apartment, the victim hit and kicked the defendant in an attempt to get away, but she could not fight him off.[2]The defendant pushed her in to his bedroom and onto his bed. Once their pants were off, the defendant retrieved a small package from his dresser drawer. The victim again attempted to run away from the defendant, but he pushed her onto his bed, put a clear cream on her vagina, and vaginally penetrated her.

         After sexually assaulting the victim, the defendant walked her home and told her that if she told anyone what happened, he would come after her. Despite the defendant's threat, the victim told her mother what happened to her once she was inside her home. The victim's mother called the police, and the victim directed the police to the defendant's apartment. The victim was taken then to an emergency room, where a sexual assault evidence collection kit was used.

         That same day, the defendant was arrested at his apartment. When officers initially encountered the defendant outside of his apartment, they detained him for investigatory purposes. While he was detained, the defendant consented to a search of his apartment. During their search of the defendant's apartment, officers found a small packet of personal lubricant with the corner torn off in the trash in the defendant's bathroom and a corner piece of foil that had been torn from the packet of lubricant in the defendant's bedroom. At the police department, the defendant consented to a buccal swab so that officers could obtain a sample of his DNA. A comparison of the victim's vaginal swab and the defendant's buccal swab confirmed the presence of the defendant's spermatozoa in the victim's vaginal cavity.

         For the reasons addressed later in this opinion, the defendant was not released on bond following his arrest. On September 26, 2012, during a pretrial hearing, the defendant attempted to escape custody by running for the back door of the courtroom. Judicial marshals immediately apprehended the defendant. The state subsequently charged the defendant in a separate information with attempt to escape custody in violation of §§ 53a-49 (a) (2) and 53a-171 (a) (1).

         On October 9, 2013, a consolidated trial commenced on a three count long form information relating to the defendant's sexual assault of the victim and a one count long form information relating to the defendant's attempt to escape custody. On October 11, 2013, the jury returned a guilty verdict on all counts. On June 18, 2014, the court imposed a total effective sentence of fifty years imprisonment followed by five years special parole for the two informations. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant raises four claims with respect to his competency to stand trial and the process by which he was found competent to stand trial. The following additional facts are relevant to these claims. On September 1, 2011, the defendant was arraigned and appointed counsel from the public defender's office. During arraignment, defense counsel noted that the defendant was a ‘‘client'' of a mental health facility and that ‘‘[h]e appears to have been steady with his treatment there.'' The court, Newson, J., stated that ‘‘mental health attention should be noted on the [mittimus].'' During the defendant's first six court appearances, between September 1, 2011 and December 12, 2011, his courtroom behavior was unremarkable.

         On January 17, 2012, the defendant was unable to be transported to court because ‘‘while in the custody of [the Department of Correction] he covered himself in feces and refused to be transported.'' Defense counsel moved for a competency examination pursuant to General Statutes § 54-56d, and the court[3] granted the motion and issued an order for a competency examination. On March 28, 2012, the Department of Mental Health and Addiction Services, Office of Forensic Evaluations, submitted a competency report, in which the clinical team unanimously concluded that, while the defendant was presently not competent to stand trial, there was a substantial probability that he could be restored to competency within the statutory time frame.[4] On March 29, 2012, the court held a competency hearing, at which the court agreed with the clinical team's assessment, ordered that the defendant receive treatment in an in patient setting, and continued the case until May 31, 2012.

         On May 25, 2012, Dr. Mark S. Cotterell, a forensic psychiatrist, submitted a second competency report to the court, in which he concluded that the defendant had not yet been restored to competency but was still capable of restoration within the statutory time frame. Cotterell's report acknowledged that the defendant had a history of mental health treatment and engaging in behaviors indicative of mental illness. However, Cotter-ell also observed that ‘‘there appears to be a volitional component to [the defendant's] presentation. It appears that he knows more than he is willing to admit.'' On May 31, 2012, the court held a competency reconsideration hearing at which it concluded that the defendant was not competent but was restorable to competency and ordered the defendant to continue to receive treatment in an inpatient setting. See General Statutes § 54-56d (k).

         On August 16, 2012, Cotterell submitted a third competency report to the court in which he concluded that the defendant was competent to stand trial. In that report, Cotterell noted that the defendant had consistently refused to participate in formal evaluations. However, Cotterell detailed aspects of the defendant's behavior that indicated that ‘‘he has the capacity to understand his legal situation and the capacity to assist his attorney if he were to choose to do so.'' The report observed that ‘‘there is definitely a volitional component'' to defendant's refusal to engage in a formal evaluation and that ‘‘[i]t is clear that he knows more than he is willing to admit.'' The report also stated that ‘‘[the defendant] is not currently taking psychiatric medication, and he has not demonstrated any symptoms of a serious mental illness that would require such treatment.'' On August 31, 2012, the court held a competency reconsideration hearing to reassess the defendant's competency to stand trial. At the hearing, Cotterell's report was marked as an exhibit, and defense counsel and the state stipulated that the defendant was competent to stand trial. The court then found that the defendant was competent to stand trial based on Cotterell's report.

         On September 26, 2012, the defendant attempted to escape from the custody of the judicial marshals after being brought into the courtroom. When court reconvened after a recess, the defendant was not present. The court indicated that he was ‘‘not behaving in any appropriate manner in the lockup, '' was ‘‘spitting at the cell door'' and was ‘‘giving the correction officers a difficult time . . . .'' Defense counsel, who had represented the defendant over the last year, agreed that the defendant ‘‘appear[ed] to be in a somewhat agitated state.'' The court stated that the defendant's next court appearance would be conducted by video conference ‘‘to minimize the further potential of any harm to any correction[al] and/or judicial marshal staff.'' Despite this arrangement, the defendant's behavior prior to the next two court hearings prevented him from participating in those hearings, even via video conference.

         Trial commenced on October 9, 2013. When court reconvened after the first morning recess, the court[5]announced that there had been ‘‘a major problem with the defendant'' because ‘‘[h]e decided to flush his jumpsuit down the toilet'' and urinated on the floor. The court directed defense counsel to find substitute clothing for him and stated that ‘‘if [the defendant] continues to act up, he will have handcuffs put on eventually.'' The court observed that ‘‘[the defendant] has been behaved in the courtroom and I'm not concerned about his behavior in the courtroom.'' The court further noted that problems arose only when he leaves the courtroom. While the court was discussing the defendant's conduct with defense counsel, the defendant interjected that he was acting out when outside the courtroom ‘‘because [the judicial marshals] put handcuffs on me in a-in a secured cell where they ain't supposed to do that.'' The court admonished the defendant that the judicial marshals were the ones in control, not him, and gave defense counsel an opportunity to speak with the defendant. The jury was then brought back into the court and evidence continued without the defendant being present in the courtroom. Later that morning, after another recess, the court observed that ‘‘[the defendant] is back in the courtroom. . . . [He] has been very well behaved in court. And that's what I see and that's what I care about, primarily. So, there has been no problem in the courtroom itself.''

         On October 10, 2013, the second day of trial and the final day of evidence, the defendant testified with respect to the escape charge. After defense counsel declined to conduct a redirect examination of the defendant, the defendant interjected: ‘‘You're an idiot.'' The court excused the jury and engaged in the following colloquy with the defendant after he was returned to the defense table:

‘‘The Court: . . . [Y]our last comment was totally gratuitous.
‘‘The Defendant: I'm sorry, ma'am. I'm on frustration, I kind of lost a little control. I apologize. It's kind of hard, you know, to sit there and like, you know.
‘‘The Court: Your apology is accepted. You don't have to go any further. However, do be advised that calling anyone [names], your attorneys, the state's attorney, anyone in the building, that is unacceptable, and if you weren't facing so much, you would be facing a contempt charge. But you did apologize, and it's just not worth even considering the contempt because you are facing so many other serious charges. All right, sir?
‘‘The Defendant: Yes.
‘‘The Court: But thank you for the apology.
‘‘The Defendant: All right.''

         The jury then was brought back into the courtroom, and the defendant did not make any other comments or cause any additional disruptions. On October 11, 2013, the third and final day of trial, the jury heard closing arguments from counsel and was charged by the court. The defendant did not make any comments or cause any disruptions in court that day. Additional facts will be set forth as necessary.

         First, the defendant seeks Golding review[6] of his claim that the court violated his purported right to testify at a competency hearing by not canvassing him, sua sponte, on whether he understood that by stipulating to his competency he was waiving his right to testify at a competency hearing. Second, the defendant claims that the court committed plain error by permitting defense counsel to waive the second reconsideration hearing because § 54-56d (k) permits only the accused to waive a reconsideration hearing. Third, the defendant claims that the court violated his due process rights and committed plain error by accepting his stipulation to his competency and by not ordering, sua sponte, an evidentiary hearing to evaluate his competency. Finally, the defendant claims that the court violated his due process rights and committed plain error by failing to order, sua sponte, a nunc pro tunc, or retrospective, [7] competency hearing to evaluate his competency at trial in light of his erratic posttrial conduct, which we discuss in detail later in this opinion. We reject the defendant's claims.

         We begin by setting forth the standards of review that will guide our analysis of the defendant's claims. ‘‘Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if 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 . . . exists and . . . 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.'' (Internal quotation marks omitted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015). ‘‘The first two steps in the Golding analysis address the review ability of the claim, while the last two steps involve the merits of the claim.'' (Internal quotation marks omitted.) State v. Britton, 283 Conn. 598, 615, 929 A.2d 312 (2007). ‘‘The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances.'' (Internal quotation marks omitted.) State v. Dixon, supra, 511.

         Although Golding is a doctrine that parties invoke to obtain review of unpreserved constitutional claims, the plain error doctrine ‘‘is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party.'' State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). ‘‘Plain error is a doctrine that should be invoked sparingly.'' (Internal quotation marks omitted.) Id. ‘‘[An appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.'' (Emphasis in original; internal quotation marks omitted.) Id., 288.

         A

         The defendant first seeks Golding review of his claim that ‘‘the trial court should have informed [him] of his right to testify [at a competency hearing], and should have canvassed him on that point, prior to accepting defense counsel's [competency] stipulation.'' (Emphasis in original.) The defendant's argument is predicated on the assumption that he has a constitutional right to testify at a pretrial competency hearing, that this is a ‘‘personal right'' that can be waived only by the defendant, and that only the accused personally can waive a competency hearing as a result. Although we conclude that the defendant's claim is reviewable pursuant to the first and second prongs of Golding, the defendant is not entitled to reversal under the third prong of Golding because he has not established that a constitutional violation exists and deprived him of a fair trial.[8]

         Assuming, without deciding, that there is a constitutional right to testify at a pretrial competency hearing, the outcome of this case is controlled by State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990), overruled in part on other grounds by State v. Skakel, 276 Conn. 633, 693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006). In Paradise, our Supreme Court held that the substantive right to testify under federal constitutional law does not contain a corollary procedural requirement that a trial court canvass a defendant concerning his waiver of his right to testify unless the defendant affirmatively states that he wishes to testify or that he did not know he could testify. Id., 404-405; see also Ghant v. Commissioner of Correction, 255 Conn. 1, 12 and n.10, 761 A.2d 740 (2000) (‘‘the trial court's failure to establish that the petitioner's waiver of his right to testify [by pleading guilty] was knowing, intelligent and voluntary does not constitute a nonfrivolous ground for appeal'' in light of Paradise); State v. Joyner, 225 Conn. 450, 482-83, 625 A.2d 791 (1993) (declining to reconsider Paradise); State v. Jordan, 151 Conn.App. 1, 36 and n.11, 92 A.3d 1032 (trial court may, but is not required to, canvass defendant personally as part of its independent inquiry into his competency to stand trial), cert. denied, 314 Conn. 909, 100 A.3d 402 (2014). In the present case, it is undisputed that at the second reconsideration hearing the defendant never affirmatively stated that he wished to testify at the competency hearing or that he did not know that he could testify. Therefore, the court had no duty to canvass the defendant on his purported right to testify at a competency hearing.

         The defendant nevertheless urges us to distinguish this case from Paradise because we are addressing the purported right to testify at a competency hearing rather than the well established right to testify at trial, which was the subject of Paradise. The defendant reasons that inferring a waiver of the purported right to testify at a competency hearing is ‘‘illogical, because the defendant (at that point in time) may be ‘unable to understand the proceedings against him or her or to assist in his or her own defense.' '' Additionally, the defendant argues that a defendant's testimony at a competency hearing can be particularly important because ‘‘[t]he defendant's demeanor and behavior in the courtroom can often be as probative on the issue of his competence as the testimony of expert witnesses.'' (Internal quotation marks omitted.) Although we agree that this case is factually distinguishable from Paradise, we conclude that Paradise is nevertheless apposite and controlling in this circumstance. Therefore, we decline to address this claim other than to note that ‘‘as an intermediate appellate body, we are not at liberty to discard, modify, reconsider, reevaluate or overrule the precedent of our Supreme Court.'' (Internal quotation marks omitted.) State v. Elias V., 168 Conn.App. 321, 334 n.12, 147 A.3d 1102, cert. denied, 323 Conn. 938, A.3d (2016).

         B

         The defendant also claims that the court erred by permitting defense counsel to stipulate to his competency, and thereby waive the second reconsideration hearing, because § 54-56d (k) permits only the accused to waive a reconsideration hearing. Because the defendant failed to preserve this statutory claim at trial, he seeks reversal pursuant to the plain error doctrine.

         The application of the plain error doctrine is ‘‘appropriate in matters of statutory construction because the interpretation of [a] statute and the resolution of [the] issue does not require further fact-finding . . . .'' (Internal quotation marks omitted.) State v. Myers, supra, 290 Conn. 288 n.8. Nevertheless, not every statutory error merits reversal under the plain error doctrine. Id., 290 and n.10. ‘‘A trial court's failure to comply with a rule of criminal procedure, without more, is insufficient to require reversal for plain error.'' Id., 290; see also id., 295 (no plain error where ‘‘[t]here simply was no constitutional right on which the trial court could have trampled''). That is, even if a defendant establishes that the trial court failed to comply with a rule of criminal procedure, to prevail he must still establish that the claimed error was ‘‘both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.'' (Emphasis in original; internal quotation marks omitted.) Id., 288. Our Supreme Court has held that a violation of a rule of practice designed to protect constitutional rights is not grounds for reversal when the defendant was not actually deprived of his or her constitutional rights. See, e.g., State v. Sanchez, 308 Conn. 64, 83-85, 87, 60 A.3d 271 (2013) (reversal under the plain error doctrine not warranted where it was ‘‘exceedingly unlikely'' that trial court's failure to give sua sponte an eyewitness identification instruction pursuant to State v. Ledbetter, 275 Conn. 534, 575, 881 A.2d 290');">881 A.2d 290 [2005], cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 [2006], harmed the defendant); State v. Myers, supra, 289-90, 295 (reversal under plain error doctrine not warranted based on trial court's failure to obtain a plea or conduct a trial, in accordance with Practice Book § 42-2, prior to sentencing defendant as a repeat offender because ‘‘the defendant . . . failed to raise any doubt with respect to the validity of his prior conviction'' [emphasis in original]).

         In the present case, we conclude that, regardless of the meaning of § 54-56d (k), the defendant has not established that he was deprived of his constitutional rights, or otherwise harmed, by the court's failure to ask him personally whether he wanted to stipulate to his competency, and thereby waive the reconsideration hearing.

         Section 54-56d codifies the constitutional standard for legal competency and establishes the procedure for determining whether a defendant is competent to stand trial. State v. Dort, 315 Conn. 151, 170, 106 A.3d 277 (2014). This statutory scheme includes procedures for initial competency evaluations as well as procedures for determining whether a defendant who has been found incompetent to stand trial has been restored to competency. In particular, subsection (e) of § 54-56d, which governs the initial competency hearing, states in relevant part: ‘‘A defendant and the defendant's counsel may waive the court hearing only if the examiners, in the written report, determine without qualification that the defendant is competent. . . .'' (Emphasis added.) By contrast, subsection (k), which governs competency reconsideration hearings, states in relevant part: ‘‘The [reconsideration] hearing may be waived by the defendant only if the report indicates that the defendant is competent. . . .'' (Emphasis added.)

         The defendant argues that because ‘‘the word ‘defendant' as used in subsection (e) refers to the accused person rather than his ‘counsel, ' the use of the word ‘defendant' in subsection (k) obviously has the same meaning.'' Nevertheless, assuming arguendo that the distinction noted by the defendant is meaningful and that the court then failed to comply strictly with § 54-56d (k), the record in this case does not establish that the court's failure deprived the defendant of his constitutional rights or otherwise harmed him. The purpose of § 54-56d is to ensure that the defendant is not tried, convicted, or sentenced while legally incompetent, and the defendant has not established that he was tried and convicted while legally incompetent. For all of the reasons discussed in part I C of this opinion, we conclude that the defendant has failed to establish that the court violated his constitutional rights by finding him competent to stand trial at the second reconsideration hearing. Similarly, for all the reasons discussed in part I D of this opinion, we conclude that the defendant has failed to establish that there was a reasonable doubt during trial that he was competent.

         Therefore, because the defendant has failed to establish that this purported procedural error was ‘‘so harmful that a failure to reverse the judgment would result in manifest injustice, '' he has failed to meet the exacting standard for reversal under the plain error doctrine. (Internal quotation marks omitted.) State v. Myers, supra, 290 Conn. 289.

         C

         The defendant next seeks Golding and plain error review of his claim that the court erroneously found him competent to stand trial at the second reconsideration hearing based on the third competency report. Specifically, the defendant argues that the court should have conducted an evidentiary hearing to explore ‘‘the troubling question of how the defendant's mental health diagnosis and treatment could change so drastically between the first competency hearing and the final reconsideration hearing.'' The state responds that the court was not required to conduct an evidentiary hearing because the third competency report, which was uncontested, provided ample evidence that the defendant was competent to stand trial. We conclude that although the defendant's claim is reviewable under the first and second prongs of Golding, the defendant is not entitled to reversal under the third prong of Golding or the plain error doctrine because he failed to establish that the court's finding of competency at the second reconsideration hearing violated his constitutional rights or constitutes a manifest injustice requiring reversal.

         ‘‘The standard we use to determine whether a defendant is competent under state law to stand trial . . . is whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.'' (Citations omitted; internal quotation marks omitted.) State v. Dort, supra, 315 Conn. 170; accord General Statutes § 54-56d (a) (‘‘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''); Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (a defendant is not competent if his ‘‘mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense''). Our courts have a ‘‘constitutional obligation, under the due process clause, to undertake an independent judicial inquiry . . . into a defendant's competency to stand trial . . . whenever [there exists] specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . 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. . . . The trial court should carefully weigh the need for [an evidentiary] hearing in each case, but this is not to say that it should be available on demand. The decision to grant a hearing requires the exercise of sound judicial discretion.'' (Citations omitted; internal quotation marks omitted.) State v. Dort, supra, 170-71.

         The thrust of the defendant's argument is that because the court knew that he had been diagnosed previously with psychiatric conditions and prescribed psychiatric medications, it was required to hold an evidentiary hearing to explore ‘‘the dramatic change in the defendant's diagnosis and the total cessation of medication.'' As a threshold matter, it is important to emphasize that mental illness is not the legal equivalent of incompetency. State v. DeAngelis, 200 Conn. 224, 230, 511 A.2d 310 (1986) (‘‘Competence to stand trial, however, is not defined in terms of mental illness. An accused may be suffering from a mental illness and nonetheless be able to understand the charges against him and to assist in his own defense . . . .''); see also Drope v. Missouri, supra, 420 U.S. 180 (‘‘[t]here are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed''). ‘‘The touchstone of competency, rather, is the ability of the defendant to understand the proceedings against him and to assist in his own defense.'' Taylor v. Commissioner of Correction, 284 Conn. 433, 452, 936 A.2d 611 (2007).

         In the present case, the court found that the defendant was competent to stand trial based on the third competency report, in which Cotterell described in detail the aspects of the defendant's behavior that indicated that he had a capacity to understand the nature of the proceedings against him and to assist in his own defense. For example, in the conclusions and recommendations section of the report, Cotterell described how the defendant, inter alia, ‘‘is able to pay attention to his environment . . . and the rules of his status. . . . He is able to communicate when he wants, and he can use appropriate vocabulary and grammar. He can listen to what others tell him and understand routine instructions and guidance. . . . His long and short-term memory functions are intact. If he wants something, he can make a plan to get it and then carry out that plan. He can show initiative if he is sufficiently motivated. He is able to work with others when he perceives that he will receive a benefit from that interaction. . . . He can and does pay attention to what is going on around him. . . . He can bring information or requests to the attention of others. . . . He knows what he wants and he can identify things that would help him to improve his situation. Sometimes, he makes choices that are maladaptive, immature, and impulsive. However, he is always aware of his options, even if he chooses unwisely.''

         Cotterell also explained that some of the negative aspects of the defendant's presentation were due to the defendant malingering to avoid the consequences of his legal situation.[9] This was not an unexpected diagnosis either; the prior competency reports also intimated that the defendant might be malingering. For example, the first and second competency reports noted that while incarcerated the defendant had a habit of threatening suicide or engaging in self-injurious or bizarre behavior in an attempt to change his placement to a more desir- able housing block. The first competency report, while concluding that the defendant's behavior during interviews was indicative of psychiatric issues, also acknowledged that ‘‘there was a volitional element to his refusal to participate in the interview process.'' Similarly, the second competency report observed that there was a ‘‘volitional component to [the defendant's] presentation'' and that ‘‘[i]t appears that [the defendant] knows more than he is willing to admit.''[10] According to the second competency report, the defendant's behavior ‘‘suggested that he was trying to find a way to avoid facing the implications of his charges.'' Cotterell's conclusion in the third competency report that the defendant was both competent to stand trial and malingering, therefore, was not as dramatic and inexplicable as suggested by the defendant.

         Finally, at the second reconsideration hearing, defense counsel, who originally moved to have the defendant's competency evaluated, did not contest the findings of the third competency report or express any concerns about his client's competency to stand trial. See State v. Ouellette, 271 Conn. 740, 754, 859 A.2d 907 (2004) (‘‘[a]lthough it is true that the defendant required treatment to restore him to competency, at no time after the evaluation team rendered its conclusion that the defendant was competent did defense counsel, the state or the trial court express any concern whatsoever about the defendant's competence''); United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (‘‘A failure by trial counsel to indicate that the defendant had any difficulty in assisting in preparation or in comprehending the nature of the proceedings ‘provides substantial evidence of the defendant's competence.' '').

         In sum, based on the totality of the information before the court at the second reconsideration hearing, we conclude that there was an adequate factual basis for the court to determine that the defendant was competent to stand trial. Additionally, we conclude that the court was not required to conduct an evidentiary hearing at the second reconsideration hearing because there was not substantial evidence that the defendant still lacked legal capacity. Therefore, the defendant has failed to meet the third prong of Golding as well as the stringent standard for relief pursuant to the plain error doctrine.

         D

         Finally, the defendant seeks Golding and plain error review of his claim that the court violated his due process rights by failing to order, sua sponte, a nunc pro tunc competency hearing to evaluate his competency at trial in light of his posttrial conduct between December, 2013 and April, 2014.[11] We conclude that the defendant is not entitled to reversal under Golding or the plain error doctrine because he has not established that the court's failure to order, sua sponte, a nunc pro tunc competency hearing violated his constitutional rights or constitutes a manifest injustice requiring reversal.

         The following additional facts are relevant to this claim. On December 12, 2013, the defendant was scheduled for sentencing. When court opened that day, the court observed the defendant's absence. A judicial marshal then explained that while the defendant was being transported to the courthouse, ‘‘he defecated on himself in the back of the transport van'' and was, therefore, transported back to the correctional facility. The court and counsel decided to proceed with the hearing on the defendant's posttrial motions and to reschedule the defendant's sentencing. After the court heard argument on, and denied, the defendant's motion for a new trial and motion to vacate, defense counsel moved to have the defendant evaluated pursuant to General Statutes § 17a-566.[12] Defense counsel explained that he and cocounsel had visited the defendant the prior week, at which time the defendant ‘‘exhibited certain behaviors, which concerned us . . . .''[13] Specifically, defense counsel stated that the defendant had ‘‘made certain statements, '' that he ‘‘had a different presentation than he did during the trial, '' and that his ‘‘psychiatric condition appears to be more prevalent than it did at times during the trial . . . .'' The court granted defense counsel's motion and ordered that the defendant be evaluated.

         On January 13, 2014, the clinical team informed the court that they had attempted to evaluate the defendant on two occasions but he had refused to meet with them. The defendant was present at the next court hearing on January 31, 2014. When the court explained to the defendant that a competency evaluation had been ordered, the defendant initially seemed confused about what the court was saying, but ultimately he agreed to participate in a competency evaluation.[14]

         On February 28, 2014, the court held a hearing concerning a motion to quash a subpoena for the defendant's mental health records, which was filed on behalf of the Department of Mental Health and Addiction Services. The court denied the motion because the defendant had waived his confidentiality in the records at the prior hearing. See footnote 14 of this opinion. The court stated that while the defendant ‘‘does have some form of a mental disability, '' it was ‘‘not sure that it's a competency disability.'' The court entered another order for a competency evaluation of the defendant. While discussing the appropriate continuance date with counsel, the defendant interjected and the following exchange occurred:

‘‘The Defendant: I'll plead guilty of all charges. How's that?
‘‘The Court: You've already had a trial, sir. You've already been found guilty of all charges.
‘‘The Defendant: Well, I plead guilty all over again.
‘‘The Court: I don't think you-
‘‘The Defendant: Have this conversation?
‘‘The Court: -can plead guilty after you've been found guilty.
‘‘The Defendant: Oh, yes I could if you're going the speed of light, you can.
‘‘The Court: Well, you've already been found guilty by a jury and all we have to do now is sentence you, sir. And if you want to agree to the sentence, ...

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