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State v. Campbell

Supreme Court of Connecticut

January 26, 2018

STATE OF CONNECTICUT
v.
JESSIE CAMPBELL III

          Argued December 14, 2016

          Ann M. Parrent, assistant public defender, for the appellant (defendant).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Vicki Melchiorre, supervisory assistant state's attorney, and Dennis J. O'Connor, former senior assistant state's attorney, for the appellee (state).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js. [*]

          OPINION

          ESPINOSA, J.

         The defendant, Jessie Campbell III, appeals, following a trial to a jury, from the judgment of conviction of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8), two counts of murder in violation of General Statutes (Rev. to 1999) § 53a-54a (a), attempt to commit murder in violation of General Statutes (Rev. to 1999) §§ 53a-49 (a) (2) and 53a-54a (a), assault in the first degree in violation of General Statutes (Rev. to 1999) § 53a-59 (a) (1), and criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1999) § 53a-217c (a) (1).[1]He was subsequently sentenced to death plus forty-five years of incarceration. On appeal to this court, the defendant has raised a total of thirty-five claims, including twenty-one claims pertaining to the penalty phase. Prior to oral argument, this court directed the parties to address an additional issue: whether the defendant's penalty phase challenges had been rendered moot by this court's decision in State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), which abolished the death penalty. We conclude that the defendant's claims challenging the penalty phase are not yet ripe. We address his remaining claims and affirm the judgment of conviction.

         The jury reasonably could have found the following relevant facts. On August 26, 2000, at 131 Sargeant Street in Hartford, a shooting left two victims dead and a third victim gravely injured. That day, after completing her shift working as a line cook at the Olive Garden in Manchester, Carolyn Privette (Carolyn) took a bus to her home at 269 Sargeant Street. She arrived shortly after 9 p.m., ate dinner, and then watched television with her husband and children. Just before 10 p.m., she decided to take a short walk to visit her niece, Desiree Privette (Desiree), who lived at 131 Sargeant Street. When she arrived at Desiree's home a few minutes later, the defendant, who had been there for approximately one hour, was standing and talking with L, [2] just inside the entrance gate to the front yard. Carolyn had known twenty-year old L since L had been a child. She recognized the defendant as L's boyfriend and the father of L's young son. Desiree, who had not been expecting Carolyn, was at the house next door. L called for Desiree, who came over and greeted Carolyn with a hug. Carolyn and Desiree sat on the steps of the front porch, talking about their day, while the defendant and L continued their conversation at the front gate. Carolyn specifically recalled that L and the defendant were not speaking in raised voices-to all appearances, their conversation seemed to be an ordinary one.

         After a short time, Desiree announced that she was going upstairs. Carolyn indicated that she would join her and asked L, who sometimes stayed overnight at Desiree's house, whether she would like to come with them. L took a few steps toward Carolyn and Desiree, stopped near a large bush by the front steps, and declined, stating that the defendant wished to continue talking. In the meantime, the defendant had also moved closer to the steps and was standing near L. As Carolyn and Desiree were beginning to stand up from the porch steps, L bent down as though to tie one of her shoes. At that moment, the defendant pulled a silver handgun out of his pocket, placed it to L's head and shot her. She tumbled over, landing partially under the bush by the stairs. The other two women began screaming and tried to escape, but the defendant ran at them with the gun. He next shot Desiree, who fell to the ground on the side of the walkway that led to the front steps. He then shot Carolyn, who was still on the steps. She instinctively raised her right hand up in front of her- the bullet went through her hand and hit her right arm. She fell, but started crawling on her hands and knees across the porch toward the front door. She ‘‘felt'' something that prompted her to look back over her shoulder. She saw the defendant standing over her, looking at her with a blank expression that she described as one the likes of which she had never seen before. He then shot her again, this time in the back of the head. Lying on the porch, Carolyn remained still, closed her eyes, held her breath and pretended to be dead, afraid that he would shoot her again. The defendant shook her to see if she was dead, then walked over to Desiree, who had not moved after she had fallen to the ground, and shot her a second time. The defendant then pulled a hood over his head and walked away, down a path along the side of the house.

         First responders arrived shortly before 10:30 p.m., within minutes after the shootings-fewer than thirty minutes after Carolyn had left her home to visit Desiree. Officers from the Hartford Police Department (Hartford police) at the scene could smell gunpowder in the air. Desiree was pronounced dead at the scene. The autopsy later revealed that she had suffered four areas of trauma from the gunshots, one wound to the chin, a through and through wound to her right forearm, another through and through wound to her right breast, and one to the right side of her head. The autopsy report concluded that the cause of death was the gunshot wound to her head.

         After quickly assessing the three victims and ascertaining that Desiree was not breathing, paramedics and emergency medical technicians at the scene focused their attention on L and Carolyn. Due to safety concerns for both the victims and the responders, the goal was to stabilize the victims as quickly as possible and remove them from the scene. L was breathing in agonal gasps, alerting responders that she was close to death. As soon as they had secured her airway, they placed her in an ambulance and transported her to Saint Francis Hospital and Medical Center (hospital). Chassidy Milner, a paramedic, attended to Carolyn. Milner and her partner removed Carolyn from the scene after performing a quick assessment. Milner rode in the rear of the ambulance beside Carolyn. When she asked Carolyn what her name was, Carolyn responded, ‘‘Jessie.'' Carolyn later explained that she knew she needed to tell the authorities who had ‘‘done that to those girls, '' before her own death, which she believed was imminent.

         L fell into a coma and was taken off life support the next morning. The autopsy revealed that the cause of death was a gunshot wound to the right parietal area of her head, an area extending from the ear to the crown. Carolyn underwent surgery and survived, eventually testifying at the defendant's trial. Her injuries, however, were significant and long-term. She has substantial scarring on her head and right hand and she no longer has peripheral vision out of her right eye. After she was released from the hospital, she was placed in rehabilitative care, where she had to relearn how to use all of her motor skills, including how to walk again. She continues to suffer from severe, frequent headaches, muscle spasms and insomnia.

         At approximately 11 p.m. on the night of the shooting, the defendant arrived at the Hartford home of his girlfriend, Jermyra Cortez. Cortez was inside when her cousin told her that the defendant was in the backyard. When she went outside to see him, the defendant was removing all of his clothes, except for his underwear and his Timberland boots, and was starting a fire to burn the clothing. He was sweating and appeared ‘‘scared, like he'd done something he ain't have no business doing.'' Cortez asked him if he had been smoking ‘‘dust.''[3] The defendant responded that he had not. She described his eyes as ‘‘wide open'' and ‘‘staring.'' She asked him why he was burning his clothes, where he had been and what he had done, but he did not answer the questions and instead repeatedly shushed her. After ten minutes, Cortez left the defendant in the backyard and went to a nightclub with her mother.

         At approximately 12:30 a.m., the defendant and his mother went to the home of J, L's mother. J was not home, but T, L's sister, was there, babysitting the son of L and the defendant. The defendant's mother left shortly after T answered the door. The defendant remained and asked T if she had seen L. She replied that she had not. The defendant asked T if she would braid his hair because he was planning to leave town the next day, but she declined and went back to bed.

         After T went back to bed, the defendant took his son with him to the hospital, where L and Carolyn were still being treated. He arrived at the hospital sometime around 1 a.m. and went to the area outside the main entrance to the emergency department. He spoke to two nursing supervisors and asked them to tell J, who was working at the hospital that night, that he wanted to speak to her. He told them that he was J's son, and that his name was ‘‘Joshua.'' As he spoke to them, he was holding his sleeping son in his arms. He claimed that he wanted to speak to J because the ‘‘baby'' was cold. When the nurses found J and brought her to speak to him, however, the defendant was no longer there. After leaving the hospital, the defendant returned his son to J's home.

         Sometime after 1 a.m., the defendant went to the home of his friend, Heather Bolling, at Oakland Terrace in Hartford. Bolling was getting ready to go to a nightclub when the defendant arrived. She described the defendant as appearing ‘‘out of it'' and ‘‘scared.'' He was wearing a jacket that appeared to be too small for him- it did not appear to be his. When she attempted to turn a light on, he told her to turn it off, and then, according to Bolling, he stated that he had ‘‘shot somebody or somebody got shot.'' He also told her that he had just come from the hospital where he had gone to see if the person he had shot was dead. Using Bolling's cell phone, the defendant called his parents to ask for his grandmother's phone number. He then called his grandmother, who lived in Kalamazoo, Michigan.

         Bolling went out, leaving the defendant in her home alone, but she returned after less than one-half hour because the club was not open that night. When she returned, she found the defendant in her bed, under the covers and crying. She described his appearance as ‘‘weird'' and ‘‘bugged out.'' The defendant asked her what she would do if her son's father shot her and two of her friends-would she get revenge or call the police? Bolling responded that she would seek revenge. Later that morning, when Bolling read about the triple shooting in a newspaper, she brought the paper to the defendant and asked him if he did it. He denied it, but Bolling asked him to leave. He called his father, who came to pick him up at approximately 7 a.m. Bolling subsequently called the police.

         Kanika Ramsey saw the defendant on Sunday, August 27, 2000, riding past her house on a bicycle. Ramsey, who was in a relationship with the defendant, lived in Windsor, in the house next to the defendant's grandfather. After she had seen him on the bicycle, the defendant phoned her and asked her to meet him outside. She went to his grandfather's house, and the defendant asked her if she had heard what happened. Ramsey responded that she had heard, and asked the defendant ‘‘who could have done this.'' The defendant said he did not know. His grandfather then called to him and said something to him that Ramsey could not hear. Immediately after hearing what his grandfather said, the defendant told Ramsey that he had to leave.

         Two days later, the Hartford police received a tip that the defendant was in Kalamazoo, Michigan. They obtained a warrant for his arrest, and he was apprehended that evening at the home of his grandmother, Lavel Campbell, and returned to Connecticut.

         The defendant waived a probable cause hearing. Following a jury trial, he was convicted of all six counts of the amended information, which charged him with capital felony in violation of § 53a-54b (8), on the ground that he murdered L and Desiree at the same time or in the course of a single transaction, two counts of murder in violation of § 53a-54a (a), attempt to commit murder in violation of §§ 53a-49 (a) (2) and 53a-54a (a), assault in the first degree in violation of § 53a-59 (a) (1), and criminal possession of a pistol or revolver in violation of § 53a-217c (a) (1). The state alleged two aggravating factors in support of the death sentence: (1) in committing the capital felony, the defendant knowingly created a grave risk of death to another person, Carolyn; and (2) the defendant committed the offense in an especially heinous, cruel or depraved manner, in that he inflicted extreme psychological pain or suffering on Desiree, and was callous or indifferent to the extreme psychological pain or suffering that his conduct inflicted on Desiree. The jury found that the state had proven the first aggravating factor beyond a reasonable doubt. The jury also found, however, that the defendant had proven at least one nonstatutory mitigating factor. Because the jury was unable to agree whether the aggravating factor outweighed the mitigating factor, the trial court granted the state's motion for a mistrial and denied the defendant's motion to impose a life sentence.

         At the second penalty hearing before a different jury, the state alleged a single aggravating factor: in committing the capital felony, the defendant knowingly created a grave risk of death to another person, Carolyn. At the end of the second penalty hearing, the jurors returned a special verdict finding that the state had proven the aggravating factor beyond a reasonable doubt; that one or more jurors had found that the defendant had proven at least one nonstatutory mitigating factor by a preponderance of the evidence, that all jurors were persuaded, beyond a reasonable doubt, that the aggravating factor outweighed the mitigating factors, and that death was the appropriate punishment. The trial court subsequently imposed a sentence of death on the capital felony count, twenty years incarceration on the attempt to commit murder count, twenty years incarceration on the assault in the first degree count, and five years on the criminal possession of a pistol or revolver count, all terms of incarceration to run consecutively. This appeal followed. Additional facts will be set forth as necessary.

         I

         PENALTY PHASE CHALLENGES

         After the defendant had been sentenced to death, this court abolished the death penalty. See State v. Santiago, supra, 318 Conn. 1. Prior to oral argument, we directed the parties to ‘‘be prepared to address at oral argument why the defendant's claims of error in the penalty phase of the proceeding should not be dismissed as moot in light of State v. Santiago, [supra, 1], and State v. Peeler, 321 Conn. 375');">321 Conn. 375, [140 A.3d 811] (2016).'' The defendant claims that the penalty phase issues are not moot because he will suffer collateral consequences if he is not allowed to challenge his prior death sentence. He contends that, unless he prevails on at least one of his penalty phase challenges, if this court affirms his conviction and remands the case to the trial court for resentencing, General Statutes § 18-10b, which governs the placement of those convicted of capital felony or murder with special circumstances, may require that he be housed in administrative segregation, which he contends constitutes an enhanced punishment.[4] The state responds that the question is controlled by this court's decision in Peeler, in which this court concluded that Santiago rendered the defendant's penalty phase challenges moot. State v. Peeler, supra, 377. In the alternative, the state contends that the defendant's claim relates to conditions of confinement, which have not yet been settled, as the defendant has not yet been resentenced. Additionally, there have been no factual findings as to how, if at all, the defendant's confinement, after resentencing, would differ from those of any inmate who is similarly situated. Accordingly, the state argues, this court lacks any record of the facts that would be necessary to enable it to determine whether the defendant may be entitled to relief. We agree with the state's alternative claim and conclude that the defendant's penalty phase claims are not ripe. Moreover, we also conclude that because the defendant's argument centers on a potential challenge to conditions of confinement, the proper vehicle for those claims is a petition for a writ of habeas corpus. Because we conclude that the defendant's penalty phase claims are not ripe, we do not resolve whether they have been rendered moot by Santiago.[5]

         The doctrines of mootness and ripeness both implicate justiciability. Janulawicz v. Commissioner of Correction, 310 Conn. 265, 270, 77 A.3d 113 (2013). ‘‘Mootness implicates this court's subject matter jurisdiction, raising a question of law over which we exercise plenary review. . . . An issue is moot when the court can no longer grant any practical relief.'' (Citation omitted; internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 323 Conn. 668, 677, 150 A.3d 666 (2016). ‘‘[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . . Accordingly, in determining whether a case is ripe, a . . . court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent [on] some event that has not and indeed may never transpire.'' (Internal quotation marks omitted.) Janulawicz v. Commissioner of Correction, supra, 271.

         For several reasons, the record is insufficient to resolve the defendant's claim that he will be subjected to more severe conditions of confinement unless this court resolves at least one of his penalty phase claims in his favor. The defendant conceded at oral argument that he has not yet been resentenced. Until that happens, we cannot say with certainty what the defendant's conditions of confinement may be. The defendant relies on § 18-10b (a) (2), which applies to an inmate ‘‘if . . . the inmate is in the custody of the Commissioner of Correction for a capital felony committed prior to April 25, 2012, under the provisions of section 53a-54b in effect prior to April 25, 2012, for which a sentence of death is imposed in accordance with section 53a-46a and such inmate's sentence is (A) reduced to a sentence of life imprisonment without the possibility of release by a court of competent jurisdiction . . . .'' Following resentencing, the Commissioner of Correction (commissioner) will be required to determine whether the requirements of § 18-10b apply to the defendant. If the commissioner so determines, then it is unclear to what extent the requirements of § 18-10b would result in different conditions of confinement for the defendant. Specifically, we note that the statute requires the commissioner to ‘‘establish a reclassification process'' that shall include ‘‘an assessment of the risk an inmate described in subsection (a) of this section poses to staff and other inmates, and an assessment of whether such risk requires the inmate's placement in administrative segregation or protective custody. . . .'' General Statutes § 18-10b (b). There is no evidence in the record as to whether the commissioner has established a reclassification process pursuant to § 18-10b, or, if such a process has been established, of what it is comprised. The commissioner enjoys broad discretion in assigning classifications to inmates. See, e.g., Anthony A. v. Commissioner of Correction, 326 Conn. 668, 675, 166 A.3d 614 (2017) (noting commissioner's broad discretion in context of due process analysis); Wheway v. Warden, 215 Conn. 418, 431, 576 A.2d 494 (1990) (same). Consistent with that broad level of discretion, the statute appears to contemplate a highly individualized assessment before an inmate is reclassified. It is uncertain at this time, therefore, what the defendant's eventual conditions of confinement will be.

         Additionally, there have been no factual findings as to what procedures and rules would otherwise apply to the defendant, findings that would be necessary to determine whether he has been or could be prejudiced by his prior death sentence. For instance, the record is devoid of any information as to whether there are other inmates who are similarly situated to the defendant, and, if so, under what conditions they are confined and how those conditions differ, if at all, from the defendant's conditions of confinement. The defendant asserts that, because § 18-10b requires that inmates falling under its purview initially must be placed ‘‘on special circumstances high security status'' and housed ‘‘in administrative segregation, '' his conditions of confinement will differ from inmates who are similarly situated. At oral argument, the defendant alluded to Eduardo Santiago, the defendant in State v. Santiago, supra, 318 Conn. 1, and suggested that Santiago's conditions of confinement will be superior to those of the defendant in the present case. There is no evidence in the record, however, as to what Santiago's conditions of confinement are, nor is there a finding that Santiago is an inmate similarly situated to the defendant. There is no evidence in the record regarding any procedures followed by the Department of Correction in classifying inmates for purposes of determining the appropriate conditions of confinement.

         It is well established that the proper vehicle by which a defendant may challenge his conditions of confinement is a petition for a writ of habeas corpus. See, e.g., State v. Anderson, 319 Conn. 288, 325, 127 A.3d 100 (2015). The present case illustrates perfectly why a habeas petition is the proper vehicle. At the habeas court, the defendant will have the opportunity to present any and all evidence that is relevant to his claim. That court is empowered to make factual findings on that evidence. This court is not. Accordingly, the defendant's appeal is dismissed with respect to his claims challenging the penalty phase and the sentence of death. See footnote 5 of this opinion.

         II

         RIGHT TO BE PRESENT DURING CRITICAL STAGES OF TRIAL

         The defendant claims that he was denied his due process right to be present during critical stages of the trial, guaranteed by the fourteenth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. Specifically, the defendant claims that he was guaranteed the right to be present at two unrecorded pretrial scheduling conferences, one held on November 25, 2003, and a second held on December 23, 2003.[6] The defendant contends that because his attorneys had not had adequate time to prepare his defense, the scheduling conferences implicated his right to effective representation by fully prepared counsel. Therefore, he contends, those conferences were critical stages of his prosecution. The defendant has cited no authority to support his claim that scheduling conferences constitute critical stages of the prosecution. Indeed, Practice Book § 44-10 (a) (3) provides in relevant part: ‘‘Unless otherwise ordered by the judicial authority, a defendant need not be present . . . at any conference, except a disposition conference pursuant to Section 39-13.'' (Emphasis added.) Our rules of practice, therefore, establish that absent a judicial order to the contrary, the general rule is that a defendant is neither required nor entitled to be present at a scheduling conference. The defendant contends that his counsel's alleged lack of preparedness transformed those conferences into critical stages, thus entitling him to be present. We disagree.

         ‘‘[A] criminal defendant has a constitutional right to be present at all critical stages of his or her prosecution. . . . Indeed, [a] defendant's right to be present . . . is scarcely less important to the accused than the right of trial itself. . . . Although the constitutional right to be present is rooted to a large extent in the confrontation clause of the sixth amendment, courts have recognized that this right is protected by the due process clause in situations when the defendant is not actually confronting witnesses or evidence against him. . . . In judging whether a particular segment of a criminal proceeding constitutes a critical stage of a defendant's prosecution, courts have evaluated the extent to which a fair and just hearing would be thwarted by [the defendant's] absence or whether his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.'' (Citations omitted; internal quotation marks omitted.) State v. Lopez, 271 Conn. 724, 732, 859 A.2d 898 (2004).

         The defendant has advanced only one argument in support of his contention that his presence at the scheduling conference had a reasonably substantial relation to his opportunity to defend against the charges. Namely, he claims that he was never offered an explanation of the trial court's reasons for setting the trial schedule, despite the position of defense counsel that the schedule did not afford them sufficient time to prepare. We first observe that the defendant is incorrect in stating that the trial court provided no reasons for setting the specific trial schedule. As we describe in part III of this opinion, when the court denied the defendant's motions for continuances, it offered a detailed explanation in support of its scheduling determinations. Even if the defendant were correct, however, he offers no explanation as to how knowing the trial court's reasons for setting the schedule would have allowed him a fuller opportunity to defend his case. The scheduling conferences were not critical stages of the defendant's prosecution.

         III

         DENIAL OF CONTINUANCES

         The defendant claims that the trial court's denial of his motions seeking continuances deprived him of his due process right to a fair trial.[7] He argues that, in arriving at its ruling, the court focused only on the age of the case and did not accord sufficient weight to other factors. He further claims that the trial court's denial of those motions prejudiced his defense by not allowing his counsel sufficient time to persuade the defendant to discuss with them the events leading to his arrest, to develop a theory of the defense, and to prepare for effective and informed voir dire. According to the defendant, the denial of continuances forced his counsel to proceed despite being ‘‘unprepared, '' with the result that they were filing motions and preparing witnesses at the last minute. We conclude that the trial court did not abuse its discretion in denying the continuances.

         The record reveals the following facts relevant to our resolution of this claim. The defendant was arraigned on September 5, 2000, at which time the court appointed Attorney David G. E. Smith of the Division of Public Defender Services (public defender's office) to represent him. One week later, Attorney Ronald Gold of the Office of the Chief Public Defender also filed an appearance. The defendant filed his first motion for a continuance on January 5, 2004, requesting that jury selection, which had been scheduled to start on that day, be postponed until March 1, 2004. In support of the motion, he claimed that, because of their respective caseloads, trial schedules and other duties, Smith and Gold had had insufficient time to work together in preparation for the defendant's trial.

         Specifically, the motion represented that Gold was defense counsel in the case of Robert Courchesne; see State v. Courchesne, 296 Conn. 622, 998 A.2d 1 (2010); which had concluded with a jury recommendation of a death sentence on December 17, 2003, nineteen days prior to the proposed January 5, 2004 start date for jury selection in the defendant's case. The defendant submitted that ‘‘nineteen (19) days between a verdict after a death penalty hearing and the start of jury selection in another death penalty trial does not allow counsel to recover both physically and emotionally from the first trial and to effectively prepare for the next trial.'' The defendant also emphasized that Gold's work on Courchesne's case was not yet finished-postverdict motions were due on January 12, 2004, and sentencing was scheduled for January 15, 2004. Gold also was counsel in two other pending capital cases. As for Smith, in 2003, he had served as counsel in five cases scheduled for jury trials, two of which were tried to verdict. Smith had served as counsel in six additional murder cases in 2003, including two capital felony cases.

         During the hearing on the defendant's motion, Gold argued that the continuance was necessary to avoid prejudice to the defendant because he and Smith had not had the opportunity to confer regarding defense strategy. The state objected to the motion, reminding the court that the case had been pending for three and one-half years and that the state could potentially be prejudiced by further delay if witnesses were to become unavailable. Several family members of the victims testified they also opposed a continuance, emphasizing to the court their long wait and need for closure. L's father testified regarding his family's need to begin healing.

         In its questions to Gold during the hearing, the court called into question the legitimacy of the reasons offered by Gold and Smith in support of the motion, stating its recollection that Judge Elliot N. Solomon, who was the presiding judge at the time, had informed the court that he had spoken with Gold during the summer of 2003 regarding the present case. According to the court, Judge Solomon stated that he had instructed Gold that he should use a hiatus in the Courchesne case between the guilt and penalty phases, from June until September, to begin preparing for this case. The court also expressed skepticism as to whether the defendant had established prejudice, asking Gold whether there were any material witnesses who had not been interviewed, any experts who had not responded, or any physical evidence that had not yet been tested. Gold did not respond affirmatively to any of those questions. The court further observed that the legal issues that would be involved in the case would pose no special problems for Gold, who was an expert in the area of death penalty law.

         The trial court issued its ruling from the bench, granting in part the motion for continuance, extending the start of jury selection by fifteen days to January 20, 2004, and delaying the start of evidence by one week. The court grounded its partial denial of the continuance on the length of time that had already passed since the arraignment, the court's view that the case was not factually complex, the approaching, busy summer season and its likely effect on juror availability, as well as staffing shortages and parking issues at the court. The court rejected defense counsel's claim that they had not had sufficient time to prepare the case for both the guilt and penalty phases because, in the court's view, preparation for the penalty phase was a ‘‘separate issue.''

         On Monday, January 26, 2004, the defendant orally requested a second continuance, because Gold's mother was dying and he was unable to be present in court. Although Smith was able to participate in voir dire, he explained to the court that, in compliance with the recommended guidelines of the American Bar Association (A.B.A.) for the defense of death penalty cases, the policy of the public defender's office was that at all times during representation of a defendant in a capital case, two defense counsel should be present.[8]Accordingly, the defendant requested that jury selection be paused until Gold was able to participate. The court did not question that the public defender's office had such a policy, but did take issue with the public defender's interpretation of the A.B.A. standards, which the court read to require only that the defense team should consist of two attorneys, not that those two attorneys must both be present in court at all proceedings. The court indicated that it would not hold jury selection that day, and also observed that no jury selection had been scheduled for Tuesday, January 27. The court further observed that weather forecasts predicted a snowstorm on Wednesday, but the court stated that if the weather did not force the state courts to close, jury selection would go forward that day. Because of the storm, the chief court administrator ordered that jurors were not to be called in on that Wednesday.

         The court learned on Thursday morning that Gold's mother had died the previous night. The defendant renewed his oral motion for a continuance until Gold was available. The court denied the motion, stating that it had already ‘‘lost'' three days of voir dire that week and that it would delay jury selection no further. Jury selection proceeded that day without Gold. On Friday, January 30, 2004, Smith renewed his request for a continuance until Monday, February 2, 2004, explaining that because Gold was attending his mother's funeral, he would again be unable to be present for jury selection. The court denied the motion, observing that Smith was present and qualified to handle jury selection on his own.

         We first set forth the applicable standard of review for the defendant's claim that the court improperly denied the continuances. ‘‘There is no question but that the matter of a continuance is traditionally within the discretion of the trial judge which will not be disturbed absent a clear abuse.'' (Internal quotation marks omitted.) State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986). ‘‘A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made. . . . Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives. . . . Therefore, on appeal, we . . . must determine whether the trial court's decision denying the request for a continuance was arbitrary or unreasonabl[e].'' (Internal quotation marks omitted.) State v. Breton, 264 Conn. 327, 356-57, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S.Ct. 819, 157 L.Ed.2d 708 (2003).

         ‘‘We have recognized that the factors to be considered by a trial court in ruling on a motion for a continuance include the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court . . . the perceived legitimacy of the reasons proffered in support of the request . . . [and] the likelihood that the denial would substantially impair the defendant's ability to defend himself . . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.'' (Citation omitted; internal quotation marks omitted.) Id., 358.

         As to the trial court's denial of the defendant's first motion for a continuance, the record demonstrates that the court was well within its discretion to partially deny the motion. It is significant that the court did allow the defendant a partial extension-fifteen days for jury selection, and a one week delay in the start of evidence. Moreover, the court relied on numerous factors in arriving at its ruling. It considered the age of the case, certainly, but also considered the effect of a delay on juror availability as well as the possible negative consequences to the state. The court appears to have accorded significant weight to its doubts concerning the legitimacy of the proffered reasons for the request for more time, noting that Judge Solomon had indicated that he informed Gold of his expectation that Gold would use the hiatus in the Courchesne case to begin working on the present case, and observing both that the case was an old one and that Gold was an expert in death penalty cases. The court also properly took account of the stated opposition of the family members of victims, and considered staffing and parking limitations at the courthouse. When the court questioned defense counsel, they failed to identify any specific area in which they were unprepared to go forward, identifying no outstanding issues pertaining to evidence or material or expert witnesses. In summary, the court properly considered the relevant factors and based its ruling on its assessment of those factors.

         As to the court's denial of the defendant's second motion for what would have been a two day continuance due to the death of Gold's mother, even if we were to conclude that the ruling constituted an abuse of discretion, the defendant's claim would fail because he has not established any harm on the basis of that denial. The only harm that the defendant alleges based on the denial of his second motion for a continuance is Smith's acceptance of two jurors on those days, whose impanelling the defendant now challenges. As we explain in part IV of this opinion, however, we reject the defendant's claim that the impanelling of those jurors violated the defendant's right to an impartial jury.

         IV

         RIGHT TO IMPARTIAL JURY

         The defendant next claims that the trial court's failure to excuse three jurors who were accepted by the defendant violated the defendant's right to an impartial jury under the federal and state constitutions. The defendant contends that each of the three jurors offered only equivocal assurances of impartiality, and, therefore, that the trial court abused its discretion by failing to excuse them, notwithstanding defense counsel's failure to challenge the jurors for cause, failure to exhaust peremptory challenges, and affirmative acceptance of each of the three jurors.[9] We have long held that ‘‘even an improper denial of a challenge for cause provides cause for reversal only if ‘the party [who makes the challenge] subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.' '' (Emphasis in original.) State v. Kelly, 256 Conn. 23, 31, 770 A.2d 908 (2001), quoting State v. Esposito, 223 Conn. 299, 313, 613 A.2d 242 (1992). In light of that established rule, it would defy all logic and run contrary to basic notions of fairness to conclude that the facts of the present case entitle the defendant to reversal of the judgment. That is, it is well established that the failure to exhaust peremptory challenges prevents this court from reversing a judgment on the basis of a subsequent denial of a challenge to a juror. It would therefore make no sense to reverse the judgment of conviction in the present case, where the defendant not only failed to exhaust peremptory challenges, but never challenged any of the three jurors at all, and, in fact, affirmatively accepted each juror. To the contrary, the actions of defense counsel make it virtually impossible to conclude that the trial court abused its discretion in failing to excuse the jurors, as it would reasonably have concluded that counsel viewed the jurors as acceptable. See State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983) (‘‘[u]nless all his peremptory challenges have been exercised before the completion of jury selection, it is presumed that no juror was permitted to serve whom the defendant regarded as biased or unsuitable, although he might have preferred others''). Accordingly, we reject the defendant's claim that the trial court abused its discretion in failing to excuse the jurors.

         V

         COMPETENCE TO STAND TRIAL

         We next address the defendant's claim that the trial court improperly found him to be competent to stand trial before the guilt phase.[10] The defendant advances three arguments in support of his claim. First, he claims that the trial court improperly gave more weight to the determination of the court-appointed evaluation team than it did to the two experts produced by the defendant. The defendant's second and third claims are that the trial court improperly interpreted the defendant's burden to overcome the statutory presumption of competence. See General Statutes § 54-56d. That is, his second claim is that the court interpreted that burden in a manner that violated his right to due process, requiring him to produce experts who could testify at his competency hearing with certainty that his failure to communicate with his attorneys was not volitional.[11] Third, the defendant contends that, in violation of his right to equal protection, the court interpreted § 54-56d to require a burden different from the one that would apply if the court had sua sponte raised the issue of competence. The state responds that the trial court properly applied the governing legal standard and, therefore, that the court's determination that the defendant was competent did not constitute an abuse of discretion. We agree with the state.

         A

         Facts

         We set forth the following additional relevant facts and procedural background. On April 7, 2004, defense counsel filed a motion for a competency examination. In the motion, counsel asserted that they had been unsuccessful in their attempts to persuade the defendant to discuss the events before, during and after the shootings. They contended that his failure to speak with them or with anyone else on the defense team regarding those events, as well as his failure to discuss his character, background and history, rendered him unable to assist in his own defense. In support of the motion, counsel also noted that, in preparation for trial, the defendant had met with Madelon Baranoski, a licensed clinical psychologist. The defendant told Baranoski that God had told him not to speak to counsel or to members of the defense team concerning the issues and events relevant to his defense. In light of that divine instruction, the defendant informed Baranoski, he would speak only to God about those issues. Defense counsel also relied on the defendant's reported academic ‘‘problems, '' which they suggested had led the defendant repeatedly and consistently to express the belief that, by not speaking to his attorneys, he was exercising his ‘‘right to remain silent.''

         The court granted the defendant's motion for a competency examination, and the clinical team from the Department of Mental Health and Addiction Services, Office of Court Evaluations (evaluation team or team), examined the defendant the next day, for approximately two hours and forty minutes. The court held the competency hearing shortly thereafter, on April 16, 2004. The various experts testified that there were two alternatives for understanding the defendant's failure to communicate with his attorneys regarding the events surrounding the shooting: either he was choosing not to cooperate of his own volition, in which case he was competent; or he was prevented from being able to cooperate by some mental illness or disorder.

         The court-appointed evaluation team unanimously found that, because the defendant had ‘‘the capacity to understand the proceedings against him and to assist in his defense, '' he was competent. At the competency hearing, the defendant presented the testimony of Betsy Graziano, a licensed clinical social worker, who was a member of the evaluation team and prepared the team's report following the evaluation. Graziano testified that the report was based on the evaluation team's interview of the defendant and its review of numerous other materials. The report identified those materials as including communications between the defendant and Baranoski, police reports, school records and evaluations, a psychological evaluation and a psychiatric consultation conducted when the defendant was a minor, and consultations with Joseph Coleman, Director of Mental Health Services at Walker Correctional Institution, where the defendant was at that time imprisoned. When questioned by the defendant, Graziano clarified that the team found that the defendant was able to assist in his defense, except for his failure to share his version of the events leading up to his arrest and his failure to provide defense counsel with information concerning his character, background and history.

         As to the defendant's failure to share that information, Graziano further testified that, although the team was unable to determine with certainty that the defendant's failure to discuss this information was volitional, the members of the team suspected that he was choosing not to cooperate with his attorneys, and they had no reason to believe that his failure to cooperate was due to a mental illness or disorder. Put another way, she stated, the evaluation team ‘‘felt pretty sure that [the defendant's failure to communicate] was not based on cognitive deficit or an irrational, psychotic process . . . .'' When pressed to explain why the team concluded that it could not determine with certainty whether the defendant was choosing not to cooperate, Graziano explained that although the team did not believe that the defendant was attempting to deceive the team members, it was apparent that he was attempting to control the interview, thus making it more challenging to discern his true motives.

         The defendant also introduced the testimony of Howard Zonana, a psychiatrist in the Department of Psychiatry at Yale Medical School, who had been retained by the defense team to perform an independent evaluation of the defendant. Zonana disagreed with the evaluation team's conclusion that mental illness or disorder could be ruled out. Although he conceded that the defendant's conduct may be volitional, he questioned the logic of the team's conclusion and ultimately concluded that the defendant was not competent. Zonana had interviewed the defendant after Graziano testified in the competency hearing. He also reviewed substantially the same additional materials as those considered by the evaluation team and had viewed a videotape of the team's interview of the defendant.

         Given the defendant's reticence and his intellectual limitations, Zonana stated that it was difficult to provide a precise diagnosis after a single interview that lasted only two hours. On the whole, however, he believed that the evidence supported the conclusion that the defendant may suffer from a mental disorder. Some of the particular traits that Zonana listed as supporting that conclusion were the defendant's extreme guardedness around and suspicion of others, his anxiety and his tendency to lapse into disorganized thought when placed under pressure. Although he conceded that the defendant had a basic understanding of the proceedings, Zonana expressed the opinion that the defendant ‘‘may'' have an underlying thought disorder that could interfere with his capacity to understand those proceedings. By way of illustration, Zonana cited to the defendant's apparent confusion regarding the meaning of the evaluation team's finding that he was competent. Specifically, the defendant did not appear to comprehend that the court would make its finding independently of the evaluation team and appeared to believe instead that the matter was conclusively settled by the team's determination. Once the defendant arrived at that conclusion, Zonana was unable to persuade him that he was mistaken. Zonana also cited to the defendant's very ‘‘global'' understanding of his right to remain silent, believing that it encompassed a right not to speak to his attorneys.

         As for the defendant's ability to assist in his defense, Zonana testified that he believed that the defendant was unable to communicate his state of mind at the time of the shootings to defense counsel. He noted that the evaluation team had been unable to resolve conclusively whether the defendant's lack of cooperation was volitional or not, but disagreed that it would be reasonable to conclude that the defendant was simply choosing not to communicate with counsel, which would require a conclusion that the defendant was malingering. That conclusion, Zonana explained, could not be reconciled with the defendant's refusal to cooperate fully with the medical professionals who had evaluated him and provided treatment to him over the years. As further evidence that the defendant was not malingering, Zonana observed that the defendant had made identical representations to a variety of different persons, including the defendant's mother, and also noted that the defendant appeared to take pride in having been found competent by the evaluation team. In his report, Zonana concluded that, ‘‘[g]iven [the defendant's] intellectual deficits, head injuries, [12] and lack of clarity surrounding his psychiatric diagnosis I feel that he does not have the capacity to work with his attorneys.''

         Finally, the defendant presented the testimony of Baranoski, who had first been retained by the defense in 2001 to perform an evaluation of the defendant. She was never asked by the defense to conduct a competency evaluation of the defendant and she did not perform one. On the basis of her meetings with the defendant over the years, however, Baranoski concluded that the defendant's failure to cooperate was not volitional and was entirely due to a psychiatric disorder. She met with the defendant twice in 2001, for a total of four hours. Although he initially cooperated, he became angry with her when she graduated from straightforward cognitive and organic testing to more nuanced, less structured tests. When she challenged him, the defendant began to provide very scripted responses with a large amount of religious content. The harder she pushed, the more agitated, pressured and disorganized his speech became. She characterized his speech at those times as so loose and disorganized that it constituted a ‘‘word salad.'' That is, she explained, he connected words in a manner that violated basic rules of syntax and did not make sense. After the second session, the defendant refused to see her.

         Baranoski did not meet with the defendant again until March 20, 2004, at which time he agreed to see her. In her desire to avoid another termination of their meetings, Baranoski was less confrontational when she resumed sessions with the defendant. She met with him five times, for a total of approximately twelve hours. During those sessions, he did not speak to her of the incidents surrounding the shootings and told her that he would only speak to God about them. She testified that the defendant showed signs of delusional thinking, likening himself to Jesus Christ, and proclaiming: ‘‘I am the living example of all those forces combined. I am the ruler, still the ruler. Going against me, you can't go against me''; and, ‘‘I am the power in this room. I love the prosecutor. I have respect and love for everyone. Even if you smack me, if you smack me I will turn.'' She stated that these statements and other, similar ones evidenced a psychotic process that was triggered by circumstances that challenged his capacity to manage his anxieties. On the basis of her interviews with the defendant, she concluded that his failure to discuss the incidents surrounding the shootings was caused by a psychiatric disorder.

         The state introduced evidence of telephone conversations between the defendant and his mother, offered to prove that the defendant was malingering. Specifically, through the testimony of its witness, James Pollard, at the time an employee in the security division of the Department of Correction, the state introduced recordings of two telephone conversations that the defendant had with his mother on April 7 and 8, 2004. In its brief to this court, the state emphasizes two statements that the defendant made during the April 7, 2004 conversation and suggests that those statements support the theory that the defendant was malingering. First, in response to his mother's questions regarding the ongoing competency evaluations, the defendant replied that he would not tell ‘‘them'' about his case because he ‘‘ain't no fool.'' In the same conversation, he also indicated that he understood that if he were found to be incompetent, the legal proceedings would ‘‘shut down.''

         We observe, however, that the majority of the defendant's remarks during the telephone conversations were not consistent with a theory that the defendant was malingering. For example, the defendant maintained with his mother the same position that he had stated to the evaluation team, namely, that he was declining to communicate because God had so instructed him. That is, the defendant told his mother that one of his attorneys had advised him not to remain silent during the competency evaluation. Notwithstanding that advice, the defendant informed his mother, if ‘‘the Lord'' wanted him to remain silent, he would say nothing. When his mother responded by asking if his attorneys believed he was ‘‘crazy, '' the defendant laughed and asked her: ‘‘Did they think Jesus was crazy?''

         In the April8, 2004 telephone conversation, the defendant and his mother again discussed the evaluation proceedings. The defendant told her that he was having difficulty following the questions that the evaluation team was asking him. At one point during the conversation, when she advised him that he should just ‘‘shut down, '' he rejected that option, stating that he wanted to cooperate because he wanted to be evaluated. His mother pointed out that if he cooperated, it would appear that he was competent to stand trial. He answered: ‘‘So be it. . . . Thank God I ain't insane.'' He stated that in his view, either result-being found competent or incompetent-was good. If he were found to be incompetent, it would help his case, but if he were found to be competent, that would just show that ‘‘after all these years, with no education and no books, I can go up in front of a bunch of white people, uneducated and give them a definition of who I am, and they can't even understand me because it's not meant for understanding.''

         The trial court issued its decision from the bench, finding that the defendant had not overcome the presumption of competence. The court summarized the following evidence that it had considered in arriving at that conclusion: the testimony of Graziano, Zonana and Baranoski, as well as their reports; the recordings of the two telephone calls that the defendant made to his mother; and the court's observations of the defendant in the courtroom. The court particularly noted its reliance on the testimony of the experts, stating that it gave less credence to Baranoski's testimony on the ground that she testified that she had not performed a formal competency evaluation of the defendant. The court instead relied on the testimony of both Graziano and Zonana. The court observed that Zonana had testified that the defendant's failure to communicate with counsel ‘‘may'' be driven by a mental disorder, but that he had also conceded that the defendant's conduct may be volitional. By contrast, the court continued, Graziano had testified that the evaluation team did not believe that the defendant's failure to cooperate with defense counsel was ‘‘driven by a mental disorder'' and that his behavior ‘‘may be volitional.'' On the basis of all of the sources it had considered, the court summarized, it concluded that the defendant had not met his burden to overcome the presumption of competence.

         B

         Analysis

         Certain general principles guide our discussion of the defendant's three claims. ‘‘[T]he conviction of an accused person while he is legally incompetent violates due process . . . .'' Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Section 54-56d (a) sets forth the required procedures and standards governing the determination of a defendant's competence and provides a definition of ‘‘not competent'': ‘‘A defendant shall not be tried, convicted or sentenced while the defendant is not competent. For the purposes of this section, 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.'' Pursuant to § 54-56d (b), a ‘‘defendant is presumed to be competent. The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.'' This court has stated that § 54-56d ‘‘jealously guards'' the right to due process, observing that the United States Supreme Court has arrived at that conclusion regarding other states' statutes that contain protections similar to those set forth in § 54-56d. State v. Johnson, 253 Conn. 1, 20 and n.22, 751 A.2d 298 (2000).

         The trial court's ultimate determination of competency is reviewed for abuse of discretion. Id., 27 n.26; see also State v. Connor, 292 Conn. 483, 523-24, 973 A.2d 627 (2009) (‘‘[T]he trial judge is in a particularly advantageous position to observe a defendant's conduct during a trial and has a unique opportunity to assess a defendant's competency. A trial court's opinion, therefore, of the competency of a defendant is highly significant.'' [Internal quotation marks omitted.]).

         1

         Credibility Determinations of the Trial Court

         We first address the defendant's claim that the trial court improperly credited the evaluation team's finding that the defendant was competent, over the findings of Zonana and Baranoski that he was not. We observe that the defendant's characterization of the trial court's ruling is not entirely accurate. In arriving at its conclusion that the defendant was competent, the court did not assign relative weight to the ultimate conclusions arrived at by the evaluation team, Zonana and Baranoski as to whether the defendant was competent. Instead, the court concluded that the defendant had failed to overcome the presumption of competence on the ground that both Graziano and Zonana testified that they had concluded that there was some level of uncertainty as to whether the defendant's failure to communicate with counsel was due to a mental disorder. To the extent that the defendant's brief may be understood to contend that the trial court improperly credited the testimony of Graziano and Zonana, over that of Baranoski, who testified without qualification that the defendant's failure to cooperate was due to a thought disorder, we address that claim. We conclude that the trial court's decision crediting the testimony of Graziano and Zonana was not clearly erroneous.

         A trial court's credibility finding will be overturned only if the finding is clearly erroneous.[13] ‘‘A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.'' (Citation omitted; internal quotation marks omitted.) State v. Santiago, 252 Conn. 635, 640, 748 A.2d 293 (2000). The mere fact that the credibility finding pertains to the testimony of expert witnesses does not change the standard of review. See, e.g., State v. Jarzbek, 204 Conn. 683, 706, 529 A.2d 1245 (1987) (‘‘[it] is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight''), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988). ‘‘[W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, [however] . . . our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence.'' (Internal quotation marks omitted.) State v. Jackson, 304 Conn. 383, 394, 40 A.3d 290 (2012).

         As we already have explained, the trial court rested its decision finding the defendant competent in part on the fact that both Graziano and Zonana testified that there was at least some level of uncertainty as to whether the defendant's failure to communicate with defense counsel was due to a mental disorder. Specifically, Graziano testified that although the evaluation team concluded that the defendant's failure to communicate with counsel was not due to a mental illness or disorder and that the team suspected that he was choosing not to cooperate, the team also stated in its report that the defendant's behavior ‘‘may'' be volitional. Zonana's testimony represented almost a mirror image of the opinion of the evaluation team-while the team could not exclude with certainty the possibility that the defendant was incompetent, Zonana effectively testified that he could not conclusively rule out the possibility that the defendant's failure to cooperate was due to a mental disorder. He specifically stated that he did not know whether the defendant's lack of cooperation was due to an underlying thought disorder.

         By contrast, Baranoski testified that it was her opinion that the defendant felt ‘‘compelled not to talk because of [his] psychiatric disorder.'' She thus rejected, without qualification, the suggestion that the defendant failed to communicate with his attorneys because he chose not to do so. The trial court, however, gave less weight to Baranoski's opinion than to the opinions of Zonana and Graziano. The reason offered by the trial court withstands scrutiny-Baranoski testified that, unlike the evaluation team and Zonana, she had not been retained to perform a competency evaluation and she did not perform one. She further testified that when evaluating a defendant for competency, examiners follow a strict protocol that is designed to focus on the two goals of such an evaluation-to measure a defendant's capacity to have a rational understanding of the charges and the proceedings, and his ability to assist his attorneys. Her testimony, accordingly, revealed that she did not follow the same protocol as that followed by the evaluation team and Zonana. Put simply, the trial court found the opinions of the experts who had actually performed competency evaluations of the defendant to have more persuasive weight than the opinion of the expert who did not. It was not clearly erroneous for the trial court to rely on that distinction in interview protocol in finding the opinions of Zonana and Graziano to be more credible than that of Baranoski.

         2

         Level of Certainty Required by Trial Court

         The defendant's second contention is that the trial court improperly interpreted his burden to overcome the statutory presumption of competence under § 54-56d to require him to produce experts who could testify with certainty that his failure to communicate with his attorneys was not volitional. The defendant argues that the trial court's demand for certainty is not reconcilable with the statutory language of § 54-56d (b), which requires him to demonstrate that he is not competent by a mere preponderance of the evidence. The state responds that the defendant has misconstrued the trial court's decision. Rather than requiring the defendant to produce experts who could testify with certainty that the defendant's conduct was not volitional in order to overcome the presumption of competency, the state argues that the court considered the varying degrees of certainty testified to by Graziano and Zonana, and concluded that on balance, that testimony provided greater support for the conclusion that the defendant's conduct did not stem from a mental disorder and was volitional. We agree with the state.

         The trial court's oral decision began by noting its observations of the defendant in the courtroom. The court then turned to the evidence it had considered in arriving at its decision: ‘‘I have heard in this case direct testimony from licensed clinical social worker . . . Graziano [and] . . . Zonana [and] . . . Baranoski. I am familiar with all of them from years in the system. I have read the report of the team. I have read . . . Zonana's report. I have heard two of the phone calls that the defendant made. I have had opportunity to observe the defendant on an almost daily basis with a couple weeks off since January 5. I have heard testimony from . . . Graziano about [the other members of the evaluation team]. I have heard testimony from . . . Graziano about her conversations as well as her reviewing of things with . . . Coleman, [the director of mental health services] at the prison. . . . Zonana has also talked to [Coleman] and reported some of what's in those medical records.

         ‘‘I'm particularly interested in the fact that independent examinations essentially by . . . Zonana as well as-and . . . Baranoski did not actually do an examination-competency examination as she just testified. But both . . . Zonana in his testimony and . . . Graziano in her testimony concerning the report indicate or used the word ‘may.' Even . . . Zonana testified, [the] defendant's failure to communicate with counsel may very well be driven-may be driven by a mental disorder. And the team doesn't think it is but says it may be volitional. And Zonana went on to testify, not know if [the] defendant's lack of ability is volitional. In sum, based on all of these sources, presumption of competency on both prongs has not been overcome and the trial will proceed.''

         A careful reading of the trial court's oral decision, particularly when considered in conjunction with the testimony and reports of Graziano and Zonana, supports the state's position. With respect to the evaluation team's conclusion, for instance, the trial court emphasized that the team did not believe that the defendant's failure to communicate with counsel was the result of a mental disorder. Graziano testified that the team was ‘‘able to determine . . . what was not the reason. . . . We felt pretty sure that it was not based on cognitive deficit or an irrational, psychotic process . . . .'' (Emphasis added.) The team was less certain, though, as to what was the reason for the defendant's silence. When asked about that reason, the best that Graziano could say was that it ‘‘may'' have been volitional. That testimony coincides with the evaluation team's report, which states that on the basis of all of the information reviewed by the team, there was ‘‘no evidence of psychotic processes or delusional thinking, nor did the undersigned team observe any.'' The report concluded that ‘‘[t]he team is unable to determine the reason [the defendant] is not discussing the events that surround his arrest. However, we believe that it may be volitional, rather than driven by cognitive deficits or a psychotic process.''

         The trial court's characterization of Graziano's testimony and the team's report is reasonable and finds support in the record. Restated, the trial court's summary of Graziano's testimony was that the evaluation team could not state with certainty that the defendant's behavior was volitional, but the team believed that it probably was. The team could state with certainty, however, that his silence was not due to a cognitive deficit or an irrational, psychotic process. That testimony supports the trial court's conclusion that the defendant failed to overcome the presumption of competence in § 54-56d (b).

         The court found that Zonana's testimony and report provided further support for the conclusion that the defendant had failed to overcome the presumption of competence. Specifically, the court found it significant that Zonana testified that the defendant's failure to communicate ‘‘may'' be driven by a mental disorder, and also stated that he did not know whether the defendant's behavior was volitional. Zonana's testimony, which expressed varying levels of certainty regarding the connection between the defendant's behavior and a mental disorder, provides support for the court's ruling. Although he testified that the defendant's behavior ‘‘may very well'' be driven by a mental disorder, Zonana also stated that he did not know whether the defendant had an underlying thought disorder that might affect his ability to understand the proceedings. He further stated that he was unable to make a diagnosis of the defendant due to the defendant's guardedness and also because his interview with the defendant lasted only for a couple of hours. Similarly, Zonana's report conveyed differing levels of uncertainty regarding a possible link between the defendant's behavior and any mental disorder. The report stated that Zonana was unable to ‘‘make a clear diagnosis based on the interview, '' and referenced that ‘‘lack of clarity'' in closing, but also expressed the view that it was not likely that the defendant was malingering, an opinion to which Zonana also testified.

         The court's interpretation of the testimony of witnesses, including any decisions to credit part of a witness' testimony, is subject to review for clear error. Our review of the trial court's decision-particularly viewed in the context of the testimony and evidence offered during the competency hearing-persuades us that it was not clearly erroneous for the trial court to interpret the testimony of Graziano and Zonana to ...


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