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STATE OF CONNECTICUT v. CRAIG HINES

(AC 38002)

Gruendel, Mullins and Mihalakos, Js.*

Argued December 2, 2015—officially released April 26, 2016

(Appeal from Superior Court, judicial district of New

Haven, Clifford, J. [determination defendant restored

to competency]; Vitale, J. [judgment])

Katherine C. Essington, for the appellant

(defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and John P. Doyle, Jr., senior assistant

state’s attorney, for the appellee (state).
Opinion

MULLINS, J. The defendant, Craig Hines, was convicted, following a jury trial, of two counts of murder

in violation of General Statutes § 53a-54a (a) and one

count of carrying a pistol without a permit in violation

of General Statutes § 29-35 (a). On appeal,the defendant

claims that the court erred (1) in finding that he had

been restored to competency to stand trial and (2) in

removing him from the courtroom during jury selection.

We affirm the judgment of the trial court.

I

The defendant’s first claim is that the court abused

its discretion when it found at the second of two competency hearings that he had been restored to competency

to stand trial. He raises three principal issues with the

court’s competency determination. First, he argues that

the determination was unreasonable because he had not

received ‘‘treatment’’ after he initially had been found

incompetent by a prior judge. Second, he argues that

the court ‘‘should have made a further inquiry and/or

asked for a third expert opinion regarding [his] competency.’’ Third, he argues that the court ‘‘appeared to’’

have based its determination exclusively on the competency report prepared during his placement for inpatient treatment for the purpose of restoring him to

competency. We disagree.

The following history of the proceedings illuminates

our consideration of this claim. On September 27, 2013,

defense counsel moved pursuant to General Statutes

§ 54-56d1

for a competency evaluation because the

defendant recently had been evaluated by Allison

Downer, the head psychiatrist at the Department of

Correction, who had prescribed the defendant an antipsychotic drug to lessen his preoccupation with physical complaints resulting from a bat bite he allegedly

suffered while in federal custody.2 Defense counsel

expressed concern that this preoccupation would

impair the defendant’s competency to stand trial. The

court, Vitale, J., ordered that the defendant undergo a

competency evaluation.

Pursuant to the court’s order, John Bonetti, a psychiatrist, conducted a competency evaluation of the defendant, a report of which he prepared on October 4, 2013.

Bonetti reported that during the evaluation the defendant complained of various pains and a chronic cough,

which he attributed to the alleged bat bite and for which

he claimed he had not received proper medical care;

the defendant’s fixation on his medical complaints prevented him from focusing on the interview. Bonetti

reported that his review of the defendant’s medical

records, however, revealed no evidence of these conditions.

While preparing the report, Bonetti spoke to Downer,

who confirmed the defendant’s fixation on the condi-
tions caused by the alleged bat bite and described the

defendant as ‘‘ ‘delusional at baseline.’ ’’ Likewise,

Bonetti noted that the defendant’s ‘‘delusional thinking

interfered with his ability to answer questions as it

permeated the entire interview.’’ Bonetti concluded that

the defendant was not competent to stand trial but that

there was a substantial probability that he could be

restored to competency by a sixty day inpatient psychiatric hospitalization.

Thereafter, on October 9, 2013, the court, O’Keefe,

J., held a competency hearing at which Bonetti testified.

Bonetti testified that the defendant’s psychiatric

records, in which ‘‘it was pretty consistently stated that

he carries a psychotic diagnosis, either schizophrenia

or a delusional disorder,’’ were significant to his conclusion that the defendant was incompetent to stand trial.

On the basis of Bonetti’s report and testimony, the court

found that the defendant was incompetent to stand trial

but that there was a substantial probability that he could

be restored to competency within sixty days, and the

court ordered that he receive inpatient treatment at

Connecticut Valley Hospital, Whiting Forensic Division

(Whiting) for the purpose of restoring him to competency.

At Whiting, Susan McKinley, a licensed clinical social

worker, conducted a second competency evaluation

and prepared a report of that evaluation dated December 4, 2013. The second competency report disclosed

the following. Neither a physical examination, which

was performed on the defendant upon admission, nor

blood tests revealed any medical problems thatrequired

additional testing or intervention. Nevertheless, the

defendant reported that he was in a great deal of pain

and complained of a sore throat, difficulty swallowing,

‘‘ ‘tissue decay,’ ’’ spinal pain, and problems with his

esophagus, spleen, and pancreas. The defendant alternately attributed these complaints to the bat bite and

to his food allegedly having been tampered with.

The report also disclosed that the defendant generally

refused to attend therapeutic and competency education group meetings at Whiting, consistently maintaining that he was competent to stand trial and that

his problems were exclusively physical. At meal times,

he was observed eating with enjoyment and without

difficulty. In his free time, he played games, socialized

with other patients, and engaged in long telephone conversations with family and friends. He also lifted

weights and engaged in vigorous exercise.

In conducting the second competency evaluation,

evaluators3 began conducting psychological testing of

the defendant but stopped before completion because

of his ‘‘performance and invalid response style.’’ Specifically, they noted that his performance on tests was

inconsistent, and he ‘‘endorsed a high proportion of

unusual symptoms that are not seen in patients with
genuine psychiatric illnesses,’’ both of which suggested

to evaluators that he may intentionally have been performing poorly. Evaluators diagnosed the defendant

with malingering and antisocial personality disorder.

Although the defendant previously had been diagnosed as psychotic, in the second competency report

evaluators attributed his behaviorto his personality and

concluded that there was no indication of a psychiatric

disorder, mood disturbance, or cognitive limitation that

would prevent him from understanding or emotionally

withstanding future court proceedings. They deemed

the defendant ‘‘capable of engaging in rational, appropriate, and focused discussions when he chooses to

do so,’’ and characterized his behavior as ‘‘a willful,

deliberate effort to portray himself as seriously ill in

an effort to thwart the judicial system.’’ Accordingly,

evaluators recommended that the court find the defendant competent to stand trial.

On December 10, 2013, the court, Clifford, J., held

a hearing to determine whether the defendant had been

restored to competency. McKinley, who was the only

witness at the hearing, testified regarding the procedure

that staff followed during the defendant’s placement at

Whiting. She testified that ‘‘[we] evaluated any issues

that we thought were pertinent, we’re interested in providing any interventions that may be necessary, medical, psychiatric or otherwise, and so on a day-to-day

basis we evaluate[d] [his] needs . . . .’’ As noted in the

report, McKinley testified that ‘‘[the defendant] tended

to avoid the competency education groups and some

of the therapeutic groups that were offered, but he was

also able to participate in a variety of other activities

of his choosing. We certainly can’t make anyone do

anything that they’re interested in declining . . . .’’

With regard to the process by which evaluators determined that the defendant had been restored to competency, McKinley acknowledged that the defendant had

refused to cooperate with attempts to ask him standardized questions for determining competency, as a result

of which the finding of competency was based on

‘‘observations on a day-to-day basis with the individual,

interactions with [the defendant], information from

staff on all shifts, and we completed—or attempted to

complete—some psychological testing as well.’’

According to McKinley, evaluators accepted the validity

of the defendant’s prior diagnoses with paranoid schizophrenia, which, she acknowledged, is a permanent illness. On the basis of their own observations and

evaluation, however, evaluators unanimously rejected

schizophrenia as a diagnosis of the defendant’s current condition.4

On cross-examination, the prosecutor asked McKinley to comment on the defendant’s current behavior in

the courtroom. The prosecutor asked, ‘‘would you agree

with me that the moment I got up to start asking you
questions [the defendant] started coughing; is that correct?’’ McKinley replied, ‘‘I heard him clearing his throat.

Yes.’’5 McKinley also testified that the defendant’s

coughing in the courtroom ‘‘[was] out of the ordinary

from what [she had] known,’’ and ‘‘[i]n general at Whiting [the defendant] appeared to be in excellent health

and we saw no indication that he was suffering from

any illness.’’

At the conclusion of McKinley’s testimony, the court

invited counsel to present arguments. Defense counsel

commented that ‘‘[i]t’s unique I think to find so many

schizophrenic diagnoses, which are permanent and not

transient, and then to not have that at all,’’ but did not

argue that the defendant was incompetent, leaving that

determination to the court’s discretion. The prosecutor,

in arguing that the defendant had been restored to competency, emphasized that ‘‘there was not one throat

clear, not one nose blow, not one cough up until the

point that the state got up and started asking [McKinley]

questions . . . and it kind of got stronger and louder

as we got toward the end.’’

The court concluded that the defendant had been

restored to competency.6 The court and the defendant

then engaged in a lengthy colloquy. The defendant

recited a litany of physical complaints and expressed

frustration over what he perceived to be two years of

inadequate medical treatment by the Department of

Correction. The court responded that it would indicate

the defendant’s request for medical attention on the

mittimus.

After a trial to a jury, the defendant was convicted

of all charges and sentenced to a total effective sentence

of 125 years imprisonment. This appeal followed.

We begin our discussion with the well settled rule

that ‘‘[t]he conviction of an accused person who is not

legally competent to stand trial violates the due process

of law guaranteed by the state and federal constitutions.

. . . This rule imposes a constitutional obligation, [on

the trial court], to undertake an independent judicial

inquiry, in appropriate circumstances, into a defendant’s competency to stand trial . . . . [Section] 54-

56d (a) codified this constitutional mandate, providing

in relevant part: A defendant shall not be tried, convicted or sentenced while the defendant is not competent. [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.

‘‘This statutory definition mirrors the federal competency standard enunciated in Dusky v. United States,

362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per

curiam). According to Dusky, the test for competency

must be 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.’’ (Internal quotation marks omitted.) State v. Jordan, 151 Conn. App. 1, 30–31, 92 A.3d

1032, cert. denied, 314 Conn. 909, 100 A.3d 402 (2014).

‘‘We review the court’s determination of competency

under an abuse of discretion standard. . . . In

determining whether the trial court [has] abused its

discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . .

Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether

the trial court correctly applied the law and could reasonably have reached the conclusion that it did.’’ (Citation omitted; internal quotation marks omitted.) State

v. Paulino, 127 Conn. App. 51, 61–62, 12 A.3d 628 (2011).

Several principles guide our determination of

whether the court’s conclusion that the defendant had

been restored to competency was reasonable. First,

‘‘[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.) State v. Connor, 292

Conn. 483, 523–24, 973 A.2d 627 (2009). Second, ‘‘[the]

court is entitled to consider trial counsel’s assertions

that his clientis competent’’; State v. Paulino, supra, 127

Conn. App. 65; but ‘‘need not accept counsel’s opinion

without question.’’ (Internal quotation marks omitted.)

State v. Crawley, 138 Conn. App. 124, 141, 50 A.3d 349,

cert. denied, 307 Conn. 925, 55 A.3d 565 (2012). Third

and finally, ‘‘a trial court is [not] required to canvass

the defendant personally as part of its independent

inquiry into his competency to stand trial.’’ State v.

Jordan, supra, 151 Conn. App. 36. With these principles

in mind, we turn to the defendant’s specific arguments.

A

The defendant first argues that the court erroneously

found that he had been restored to competency because

he ‘‘had been previously found incompetent by a different judge . . . and he was not treated for his mental

illness during the intervening period.’’ Instead of treating his mental illness, he argues, ‘‘McKinley’s team

merely conducted a second competency evaluation.’’

The state counters that this argument fails because § 54-

56d does not prescribe the type of treatment that a

defendant must receive before a judge may find that

he has been restored to competency. We agree with

the state.

The defendant’s claim, that a court’s inquiry into

whether a defendant previously found incompetent has

been restored to competency is controlled by the type

of treatment he has received in the interim, finds no

support in the relevant statutes or case law. The stan-
dard to be applied by a trial court determining a defendant’s competency is the same regardless of whether

the defendant was previously found incompetent. See,

e.g., State v. Edwards, 158 Conn. App. 119, 134–37, 118

A.3d 615, cert. denied, 318 Conn. 906, 122 A.3d 634

(2015); State v. Bigelow, 120 Conn. App. 632, 638, 643–

44, 994 A.2d 204, cert. denied, 297 Conn. 916, 996 A.2d

278 (2010). As previously noted, this standard directs

the court to determine only whether the defendant is

capable of understanding the proceedings against him

and assisting with his own defense. State v. Jordan,

supra, 151 Conn. App. 30–31.

In arguing that he did not receive that ‘‘treatment’’

on which a finding of restoration to competency must

be predicated, the defendant cites, without analysis,

various portions of § 54-56d referring to ‘‘treatment.’’

None of these provisions, however, prescribes the type

of treatment that a defendant must receive, let alone

requires a court to determine whether a course of treatment is adequate, before a court properly may find

that he has been restored to competency. See General

Statutes § 54-56d (h) (1) (A) (directing court, on finding

substantial probability that presently incompetent

defendant may be restored to competency, to ‘‘[place]

. . . the defendant for treatment for the purpose of

rendering the defendant competent’’); General Statutes

§ 54-56d (k)(directing court to hold hearing afterreceiving report and to ‘‘determine whether the defendant

is competent or is making progress toward attaining

competency within the period covered by the placement

order’’); General Statutes § 54-56d (j) (permitting but

not requiring court to request that competency report

contain information regarding method of treatment). If

the legislature had intended to require the court to

inquire into the adequacy of the treatment received,

it could have done so. Presented with this legislative

omission, it is not a court’s role to engraft language onto

the statute to require such an inquiry. See McCullough v.

Swan Engraving, Inc., 320 Conn. 299, 309, 130 A.3d

231 (2016).

On the basis of the foregoing authority, the court did

not abuse its discretion when it concluded, without

evaluating whether the defendant underwent a particular course of treatment at Whiting, that the defendant

was capable of understanding the proceedings against

him and assisting with his own defense. State v. Jordan,

supra, 151 Conn. App. 30–31; see State v. Edwards,

supra, 158 Conn. App. 125 (noting that competency

report and testimony indicated that defendant’s

attending psychiatrist did not make specific diagnosis

or administer medication during inpatient treatment

because defendant exhibited no sign of psychotic disorder, and that disruptive behavior was result of choice).

B

Second, the defendant argues that ‘‘[i]nstead of
merely accepting the conclusions of the second competency report, Judge Clifford should have made a further

inquiry and/or asked for a third expert opinion regarding

[the defendant’s] competency’’ for two reasons: (1) the

report’s reliability was questionable because the ‘‘conclusion [therein] that [the defendant] was not suffering

from a major mental illness was so contrary to [prior]

conclusion[s] reached by Dr. Bonetti, Dr. Downer . . .

and [others]’’; and (2)the report was internally inconsistent because it reported that the defendant was

obsessed with his medical condition yet concluded that

his physical complaints did not prevent him from engaging in reasonable discussions. We disagree.

‘‘It is constitutionally permissible forthe burden to be

placed on the defendantto prove, by a preponderance of

the evidence, that he is incompetent . . . .’’ State v.

Dort, 315 Conn. 151, 162, 106 A.3d 277 (2014). Accordingly, ‘‘[o]nce the court grants a motion for a competency examination, the burden rests on the [defendant

as] moving party to prove that [he] is not competent

. . . .’’ (Internal quotation marks omitted.) State v.

Johnson, 253 Conn. 1, 23, 751 A.2d 298 (2000); see

General Statutes § 54-56d (b). The burden remains on

the defendant, as the moving party, to prove that he

has not been restored to competency. See, e.g., State v.

Bigelow, supra, 120 Conn. App. 643. At the competency

hearing, ‘‘[t]he court may call its own witnesses and

conduct its own inquiry.’’ (Emphasis added.) General

Statutes § 54-56d (b). The court is equally free, however,

to decide the issue of competency solely on the basis

of the evidence presented by the parties. See General

Statutes § 54-56d (b).

In the present case, the court was not required to

seek out additional evidence to resolve either of the

inconsistencies the defendant cites before determining

that he had been restored to competency. The burden

was on the defendant to prove that he still was incompetent. At the second competency hearing, the court heard

extensive testimony from McKinley with regard to why

her team concluded in the second competency report

that the defendant did not suffer from a psychiatric

affliction. The defendant did not present evidence, apart

from the first competency report, to rebut either that

conclusion7 or the diagnosis of malingering.

The court also had before it the evaluators’ conclusion that the defendant was ‘‘capable of engaging in

rational, appropriate, and focused discussions when he

chooses to do so’’ and that his behavior was ‘‘a willful,

deliberate effort to portray himself as seriously ill in

an effort to thwart the judicial system.’’ Defense counsel

elected not to challenge McKinley with regard to how

the defendant reportedly could engage in such rational

discussions despite his obsession with his medical conditions. The court was entitled to rely on the foregoing

evidence in the record, which supported its conclusion
that the defendant was capable of understanding the

proceedings against him and assisting with his own

defense. Accordingly, we conclude that the court correctly applied the law and that its finding of competency

based on the second competency report and McKinley’s

testimony was reasonable.

C

Third and finally, the defendant argues that the court

abused its discretion when it ‘‘appeared to’’ base its

competency finding exclusively on the second competency report even though it should have (1) reviewed

the first competency report and transcripts of the defendant’s prior court appearances, (2) elicited defense

counsel’s opinion as to whether the defendant had a

rational understanding of the case and could assist in

his defense, and (3) canvassed the defendant or taken

into account personal observations of his courtroom

behavior. We are not persuaded.

We again note that the applicable standard of review

limits us to determining ‘‘whether the trial court correctly applied the law and could reasonably have

reached the conclusion that it did.’’ (Internal quotation

marks omitted.) State v. Paulino, supra, 127 Conn. App.

62. As our discussion of the defendant’s prior arguments

makes clear, the record satisfies us that the court reasonably concluded, on the basis of a proper application

of the law, that the defendant had been restored to

competency. In any event, both the record and the applicable legal principles establish that the court acted

properly.8 First, defense counsel explicitly chose to

leave the determination of competency to the court’s

discretion, pointing out only that ‘‘[i]t’s unique, I think,

to find so many schizophrenic diagnoses, which are

permanent and not transient, and then to not have that

at all.’’ Even if defense counsel had asserted that the

defendant was still incompetent, the court was free to

accept or reject that opinion. State v. Crawley, supra,

138 Conn. App. 140–41; State v. Paulino, supra, 127

Conn. App. 64–65.

Second, although the court did not canvass the defendant before deciding that he had been restored to competency, ‘‘a trial court is [not] required to canvass the

defendant personally as part of its independent inquiry

into his competency to stand trial.’’ State v. Jordan,

supra, 151 Conn. App. 36. The court was at liberty to

take into account the defendant’s behavior during the

competency hearing, which, the record indicates, was

consistent with the evaluators’ conclusion that he was

wilfully trying to thwart the judicial process. The prosecutor specifically drew the court’s attention to this

behavior by asking McKinley to confirm his observation

that the defendant appeared to have timed a coughing

fit to coincide with the beginning of cross-examination.

McKinley did so, and she also confirmed that such conduct was consistent with at least one prior occasion
on which the defendant apparently timed a coughing

fit deliberately. See footnote 5 of this opinion. The court

also personally observed the defendant’s behavior during a lengthy conversation with the defendant at the

conclusion of the hearing. Counsel for the defendant

did not ask the court to reconsider its ruling on the

basis of that exchange.

For the foregoing reasons, we conclude that the trial

court properly exercised its discretion in determining

that the defendant had been restored to competency.

II

The defendant’s second claim is that the trial court

erred by removing him from the courtroom during jury

selection. This claim is threefold. First, he contends

that because he was unable to control the behavior that

led to his removal, he did not knowingly and intelligently waive his constitutional right to be present for

jury selection. Second and relatedly, he contends that

on the basis of this behavior, the court should have

ordered, sua sponte, another competency evaluation.

Finally, he contends that instead of placing him in the

courthouse lockup, the court should have placed him

in a conference room adjoining the courtroom or continued the proceedings to fashion a better accommodation. We are not persuaded.

The following history of the jury selection process

is relevant to this claim. On January 27, 2014, the court,

Vitale, J., stated to defense counsel that ‘‘I’ve been

patient to this point, but my patience will have its limits

at some point regarding your client’s conduct.’’9 On

January 29, 2014, the court told defense counsel that

‘‘if [the defendant’s behavior] becomes disruptive, and

it’s approaching that now, if it continues then the court

is going to have to unfortunately take action which

I don’t want to do. But, I’m not going to allow the

proceedings to be disrupted by those types of sounds

based on what I’ve seen happen before during some

preliminary hearings and the [second competency

report]. So that’s a choice he’ll have to make.’’

At the conclusion of that day’s proceedings, the court

made a record of the defendant’s behavior ‘‘in the event

[that] other actions are going to be required.’’10 Then,

after noting that it previously had admonished the

defendant to refrain from such behavior, the court

observed that he had ‘‘managed to stop during my

lengthy indoctrination to the jury this morning, during

his lawyer’s remarks, during [the prosecutor’s]remarks,

demonstrating, obviously, he can stop if he chooses to,

and he has engaged in this behavior on the record before

me prior to the court ordering a competency exam. And

obviously the court and counsel are both familiar with

the results of the competency exam by Whiting dated

December 4, 2013, which makes it abundantly clear

that there is no medical or psychiatric reason for this
behavior, that he’s in complete control of his behavior,

and that there’s no psychiatric or medical impairment

that would cause this conduct other than a direct effort

on his part to attempt to disrupt the proceedings, and

it’s beyond simply clearing his throat.’’ Defense counsel

acquiesced to the court’s characterization of the defendant’s behavior without objection and urged the defendant to behave appropriately.

On January 31, 2014, the court announced that it

would ‘‘need to address’’ the defendant regarding his

continued disruptive behavior because its prior admonitions had been in vain. Defense counsel requested, in

the absence of a ‘‘place, as there are in other courts,

where he could be able to hear things that are going

on but other people could not hear him,’’ that the defendant be placed in a conference room adjoining the courtroom instead of in the courthouse lockup. The court

denied the request because the conference room was

not sufficiently secure.11 Defense counsel objected to

the defendant being placed in the lockup.

The court then canvassed the defendant to determine

whether he understood that his conduct could result

in a waiver of his constitutional right to be present for

jury selection. In response, the defendant once again

complained of an inability to obtain proper treatment

for his numerous medical complaints. The court replied

that it had attempted to address those complaints, that

the second competency report indicated that the defendant could choose to control his behavior, and that,

already having warned the defendant, the court would

no longer tolerate the behavior.

The court ordered that the defendant be taken to the

lockup after again noting that the adjoining conference

room was insufficiently secure, advising the defendant

that it would permit him to return to the courtroom

upon request and with appropriate assurances that he

would abstain from further disruptive behavior.

Defense counsel asked for permission to consult with

the defendant in the lockup before picking any other

juror. The court indicated that it would deny the request

unless defense counsel could produce legal authority

for granting it.12 Finally, the court instructed defense

counsel to ask the defendant during the upcoming luncheon recess whether he wished to return to the

courtroom.

After the luncheon recess, defense counsel reported

that the defendant had declined to return to the courtroom. The court recessed briefly so that defense counsel once again could invite the defendant to return;

again, the defendant declined the invitation.

On that day, two jurors were selected in the defendant’s absence. Before selecting one juror, defense

counsel asked to consult with the defendant in the

lockup. The court denied the request, noting that the
defendant had ‘‘waived his presence by his conduct.’’

When jury selection resumed on February 3, 2014,

the defendant was present.13 Jury selection concluded

without recorded incident.

‘‘We begin with a fundamental tenet of criminal jurisprudence: a criminal defendant has a constitutional

right to be present at all critical stages of his or her

prosecution. Rushen v. Spain, 464 U.S. 114, 117, 104 S.

Ct. 453, 78 L. Ed. 2d 267 (1983) (right to personal presence at all critical stages of the trial and the right to

counsel are fundamental rights of each criminal defendant). . . . 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 [in which] the defendant is not actually

confronting witnesses or evidence against him. Snyder

v. Massachusetts, 291 U.S. 97, 105–106, 108, 54 S. Ct.

330, 78 L. Ed. 674 (1934); see State v. Jarzbek, 204 Conn.

683, 691–92, 529 A.2d 1245 (1987)(recognizing thatright

to be present similarly is guaranteed by article first,

§ 8, of our state constitution), cert. denied, 484 U.S.

1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).’’ (Citation

omitted; internal quotation marks omitted.) State v.

Edwards, supra, 158 Conn. App. 138.

‘‘[A trial] court may infer the defendant’s waiver [of

the right to be present] from the totality of his acts and

conduct, so long as the defendant has been adequately

informed that the trial would continue in his absence.’’

State v. Gonzalez, 205 Conn. 673, 689, 535 A.2d 345

(1987). ‘‘The [United States] Supreme Court [in Illinois

v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed 2d

353 (1970)] opined that [a]lthough mindful that courts

must indulge every reasonable presumption against the

loss of constitutional rights . . . a defendant can lose

his right to be present at trial if, after he has been

warned by the judge that he will be removed if he

continues his disruptive behavior, he nevertheless

insists on conducting himself in a manner so disorderly,

disruptive, and disrespectful of the court that his trial

cannot be carried on with him in the courtroom. . . .

The defendant may reclaim his constitutionalright to be

present if he demonstrates that he is willing to conduct

himself consistently with the decorum and respect

inherent in the concept of courts and judicial proceedings.’’ (Citation omitted; internal quotation marks omitted.) State v. Edwards, supra, 158 Conn. App. 140; see

Practice Book § 42-47.14

‘‘[T]he trial court has broad discretion in determining

whether the removal of an accused from the courtroom

is an appropriate measure in light of the nature and

severity of the improper conduct.’’ State v. Jones, 281

Conn. 613, 637, 916 A.2d 17, cert. denied, 552 U.S. 868,

128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). ‘‘Our appellate

decisions illustrate the type of conduct that has been
deemed to constitute valid waivers of the right to be

present at a critical stage of the prosecution. See . . .

State v. Gonzalez, [supra, 205 Conn. 689] (defendant

forfeited right to be present by acting in bizarre and

disruptive manner); State v. Drakeford, 202 Conn. 75,

81, 519 A.2d 1194 (1987) (defendant who was removed

for interrupting voir dire, and then declined to return

when sheriff informed him he could do so, unequivocally waived his right to attend jury selection).’’ (Citation omitted; internal quotation marks omitted.) State

v. Edwards, supra, 158 Conn. App. 140–41.

Finally, ‘‘[o]nce the trial court determine[s] . . . that

the defendant [is] competent to stand trial, it [does]

not have a further obligation to inquire whether the

defendant’s forfeiture of his right to be present was the

result of incompetence . . . .’’ State v. Gonzalez,

supra, 205 Conn. 689. With these principles in mind, we

turn to the defendant’s specific arguments.

We consider together the defendant’s related arguments (1) that because he was unable to control the

behavior that led to his removal, he did not knowingly

and intelligently waive his constitutional right to be

present for jury selection15 and (2) that on the basis of

this behavior, the court should have ordered, sua

sponte, another competency evaluation before

determining that he had waived his right to be present.

We disagree.

The court properly determined that the defendant

impliedly waived his right to be present by his disruptive

conduct. The record reveals that the court warned the

defendant not once but several times that jury selection

would continue in his absence if he did not conduct

himself appropriately. After each warning, the defendant continued to engage in the same loud, distracting,

and offensive behavior. From his continued disruption

of the proceedings, the court permissibly inferred the

defendant’s waiver of his right to be present for jury

selection. See State v. Gonzalez, supra, 205 Conn.

689–90.

The court also was not required to order another

competency evaluation on the basis of the behavior

that led to the defendant’s exclusion from jury selection.

His behavior did not materially differ from the behavior

he exhibited before and during the prior determination

of competency—namely, his loud, suspiciously timed

coughing fits and associated insistence that he was

suffering from various untreated medical conditions.

‘‘When a court has previously found a defendant competent and that determination is premised on proper consideration of the relevant factors, the court’s inquiry

when deciding whether to order another competency

evaluation is whether the defendant’s condition has

materially changed since [the] previous finding of competency.’’ (Internal quotation marks omitted.) State v.

Edwards, supra, 158 Conn. App. 134.
As previously noted, when a court has determined

that a defendant is competent to stand trial, in the

absence of such a material change ‘‘it [does] not have

a further obligation to inquire whether the defendant’s

forfeiture of his right to be present was the result of

incompetence . . . .’’ State v. Gonzalez, supra, 205

Conn. 689; see also id., 687, 689 (court obligated to

inquire into defendant’s competency when informed

midtrial that defendant had been given antipsychotic

drug and attempted suicide but, having concluded that

defendant nevertheless was competent, court not

required to inquire into effect of antipsychotic drug on

defendant’s forfeiture of right to be present).

In the present case, the court’s conclusion that the

defendant had waived his right to be present was ‘‘based

on what [the court had] seen happen before during

some preliminary hearings and the [second competency

report]’’16 as well as its observations during jury selection. The court observed that the defendant refrained

from the disruptive conduct during its indoctrination

of the jury, ‘‘demonstrating [that] obviously he can stop

if he chooses to . . . .’’ On the basis of the defendant’s

behavior, which remained consistent throughout the

proceedings, the court concluded that ‘‘it [is] abundantly clear that there is no medical or psychiatric reason for this behavior, that he’s in complete control of

his behavior, and that there’s no psychiatric or medical

impairment that would cause this conduct other than

a direct effort on his part to attempt to disrupt the

proceedings . . . .’’ The defendant did not produce evidence demonstrating that this pattern of behavior differed at all, let alone materially, from his conduct at

prior proceedings.17

We conclude that the court properly exercised its

discretion in declining to order another competency

evaluation on the basis of its independent inquiry into

the defendant’s competency. See State v. Edwards,

supra, 158 Conn. App. 137 (holding that court did not

abuse discretion in relying on observations, input, and

previous competency evaluation as bases for not ordering additional competency evaluation); State v. Jordan,

supra, 151 Conn. App. 37–38 (holding that failure to

order additional competency evaluation not abuse of

discretion where defendant did not produce evidence

that condition had changed since prior evaluation and

record supported court’s determination that defendant’s behavior was attempt to disrupt proceedings);

State v. Johnson, 22 Conn. App. 477, 489, 578 A.2d 1085

(defendant’s ‘‘obstreperous, uncooperative or belligerent behavior did not obligate the court to order a competency examination’’ where defendant had ‘‘ability to

cooperate but did not want to do so’’), cert. denied, 216

Conn. 817, 580 A.2d 63 (1990).

We finally consider the defendant’s argument that

the court abused its discretion by placing him in the
courthouse lockup when he was removed from jury

selection. Specifically, he argues, the court erred ‘‘in

not placing [him] in the conference room because [it]

did not make a record as to why any security concerns

could not be addressed by the judicial marshals,’’ in

failing to explore all possible alternatives to placing

him in the lockup, such as using closed circuit television, and in failing to continue the proceedings ‘‘until

a better accommodation could be made.’’ The court

compounded its error, he argues, by subsequently denying defense counsel’s request to consult with the defendant before selecting jurors in his absence. We are

not persuaded.

‘‘[T]here are at least three constitutionally permissible ways for a trial judge to handle an obstreperous

defendant . . . (1) bind and gag him, thereby keeping

him present; (2) cite him for contempt; [or] (3) take

him out of the courtroom until he promises to conduct

himself properly.’’ Illinois v. Allen, supra, 397 U.S. 343–

44. Our rules of practice leave to the court’s discretion

the determination of where a defendant who has been

taken out of the courtroom shall be placed, provided

only that the defendant must remain in the building in

which the courthouse is located. See Practice Book

§ 42-47. ‘‘[T]he trial judge is best equipped to decide the

extent to which security measures should be adopted to

prevent disruption of the trial, harm to those in the

courtroom, escape of the accused, and the [commission] of other crimes . . . .’’ (Internal quotation marks

omitted.) Sekou v. Warden, 216 Conn. 678, 691–92, 583

A.2d 1277 (1990).

Although our appellate courts have viewed favorably

a court providing an accommodation by which a defendant who has waived the right to be present may

observe the proceedings; see id., 696 (‘‘the court permitted [the defendant] to choose between two equally permissible alternatives: presence under restraint, or

absence coupled with mechanical observation of the

proceedings’’); State v. Strich, 99 Conn. App. 611, 618–

19, 915 A.2d 891 (holding that where defendant placed

in holding cell equipped with speaker system, there was

‘‘no flaw, constitutional or otherwise’’ in trial court’s

removal of defendant from courtroom), cert. denied,

282 Conn. 907, 920 A.2d 310, cert. denied, 552 U.S. 901,

128 S. Ct. 225, 169 L. Ed. 2d 171 (2007); they have not

suggested that such means are constitutionally

required.

In the present case, the court properly exercised its

discretion in removing the defendant to the lockup once

it determined that the defendant had by his conduct

waived his right to be present for jury selection. Contrary to the defendant’s assertion that the court did not

make a record of its reason for removing him to the

lockup instead of to the conference room adjoining the

courtroom, the court expressly noted that the marshals
could not adequately secure the conference room,

which adjoined a public hallway and, therefore, was an

inappropriate place in the court’s opinion for a defendant facing trial on allegations of murder. See footnote

11 of this opinion. The court was in the best position

to weigh the risks associated with placing the defendant

in the conference room. Having determined that placing

the defendant in the conference room would be imprudent, the court was permitted to place the defendant

in the courthouse lockup and was not required to delay

the proceedings until all possible alternatives could

be vetted.

Having waived his right to be present for jury selection and having been properly removed to the lockup,

the defendant was not entitled to confer with his attorney before the subsequent selection of any juror.

Defense counsel did not provide the trial court with

any binding legal authority in support of his argument

that such consultation was required, nor has the defendant provided any here.18 Also, the court twice dispatched defense counsel to the lockup to inquire

whether the defendant wished to return to the courtroom for jury selection. The defendant twice declined

the invitation to return. If the defendant had wanted to

confer with his counsel before any juror was selected,

he could have made the required assurances and

returned to the courtroom. ‘‘[N]o defendant has a unilateral right to set the time or circumstances under which

he will be tried. . . . We cannot permit an accused to

elect to pursue one course at the trial and then . . .

to insist on appeal that the course which he rejected

at the trial be reopened to him . . . . [T]he protection

which could have been obtained was plainly waived

. . . . The court only followed the course which [the

defendant] himself helped to chart . . . .’’ (Citations

omitted; internal quotation marks omitted.) State v.

Drakeford, supra, 202 Conn. 80–81 (court did not err

in proceeding with jury selection after defendant voluntarily absented self).

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 General Statutes § 54-56d provides in relevant part: ‘‘(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.

‘‘(c) If, at any time during a criminal proceeding, it appears that the

defendant is not competent, counsel for the defendant or for the state, or

the court, on its own motion, may request an examination to determine the

defendant’s competency.

‘‘(d) If the court finds that the request for an examination is justified and

that . . . there is probable cause to believe that the defendant has committed the crime for which the defendant is charged, the court shall order an

examination of the defendant as to his or her competency. . . . [E]xaminers

shall prepare and sign . . . a written report and file such report with the

court . . . .’’

2 During the time he was in federal custody, the defendant claimed to
have been bitten by a bat and to have contracted rabies from that bite.

There never has been any medical confirmation of that claim. The defendant

currently is serving a sentence of twenty-six years and eight months on

unrelated federal charges.

3 The team of Whiting staff evaluating the defendant included McKinley,

Lori Calwell, a psychologist, and Steven Lazrove, a psychiatrist.

4 Defense counsel examined McKinley as follows:

‘‘Q. In [your] review of [the defendant’s] records [from the Federal Bureau

of Prisons] you found out his . . . diagnosis [was] schizophrenia paranoid

type . . . is that correct?

‘‘A. That is what they indicated in those records, yes.

‘‘Q. Do you have reason to doubt that diagnosis?

‘‘A. I was not part of those evaluations so we accept that information

as written.

‘‘Q. And schizophrenia paranoid type, is that a neurotic condition or

psychotic condition?

‘‘A. It’s a psychotic condition.

‘‘Q. And does that, can that condition be transient, come and go, or is it

a more permanent condition?

‘‘A. It is considered a permanent condition. . . .

‘‘Q. Okay. Fair enough. And in addition to that, you had the opportunity

to see the Connecticut Department of Correction records that indicated

diagnoses such as . . . schizophrenia with paranoid and somatic delusions.

Again, no reason to doubt those diagnoses either?

‘‘A. Again, those are the opinions of other evaluators and—and we accept

that information. . . .

‘‘Q. Okay. So can—is there any way that you can explain why other

professionals have found him consistently schizophrenic and you did not?

‘‘A. I certainly can’t give you any information about their assessment and

what they saw at the time. It is not unusual for different evaluators to

have varying opinions based on the presentation of the individual and the

circumstances . . . .’’

5 A related exchange between the prosecutor and McKinley was as follows:

‘‘Q. And at one point as well, and if you could clarify. Was there a point

in the observations by individuals employed by Whiting, is it a correct

statement, that at one point [the defendant] was in his particular unit or

his particular room, so to speak, and not coughing or complaining of any

discomfort until apparently staff were outside of his door and he noticed

that? . . .

‘‘A. There were records from the Department of Correction that noted a

similar circumstance.’’

6 The court stated the following: ‘‘I think it’s at least clear under the

presumption of competency, and even though there was a finding of incompetency based on what appears to be a detailed report that’s defense exhibit

one for purposes of the reconsideration of competency, and obviously from

the testimony of the witness, that I’m going to find that the defendant has

been restored to competency and is presently able to understand the nature

of the charges and does have the ability to assist counsel in his defense. I

am finding [this] based on the testimony and the exhibit and listening,

obviously, to the arguments of counsel that he is competent at this time to

stand trial.’’

7 Even if the Whiting evaluators had agreed with prior diagnoses of schizophrenia, the defendant’s diagnosis with a mental illness alone would not

have disposed of the competency inquiry. ‘‘[C]ompetence to stand trial . . .

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 . . . .’’ (Internal quotation marks

omitted.) State v. Bigelow, supra, 120 Conn. App. 642–43.

8 As to the defendant’s claim that the court ignored the first competency

report, the record is somewhat ambiguous. Before the second report was

entered into evidence, the court stated that ‘‘[t]here has probably been a

previous report, so I don’t know how you want to mark this.’’ Later, the

court asked the courtroom clerk, ‘‘[d]o we have the reports too?’’ and the

clerk responded affirmatively.

Nevertheless, as we have discussed, the material findings of the first

report—namely, that the defendant had been diagnosed as schizophrenic

and delusional—were brought out during defense counsel’s examination of

McKinley at the second competency hearing. Additionally, the defendant

failed to file a motion for articulation to allow the court to clarify whether

it considered the first report. Accordingly, ‘‘[c]ognizant that we must make

every reasonable presumption in favor of the correctness of the court’s
decision . . . we are left to conclude on the basis of our review of the . . .

record provided that the court acted reasonably . . . .’’ Gordon v. Gordon,

148 Conn. App. 59, 67–68, 84 A.3d 923 (2014).

9 The court did not elaborate on the conduct to which it referred.

10 Accordingly, the court noted that the defendant had ‘‘loudly and exaggeratedly inhaled through [his] nose summoning phlegm and nasal fluids and

then, having done so, loudly and exaggeratedly cleared his throat and then

loudly and exaggeratedly spit the contents into a cup which is at counsel

table.’’ The court characterized this behavior as ‘‘disgusting and disruptive.’’

11 The court described the conference room as ‘‘adjacent to the public

hallway, [which] I don’t believe is an appropriate place to place someone

who’s facing a trial on a murder allegation.’’

12 The record does not disclose that defense counsel ever produced

such authority.

13 Immediately afterthe start of the proceedings on that day,the prosecutor

noted that ‘‘just as I got up to address the court [the defendant] started

clearing his throat and making those sounds again with his throat, and

spitting into the cup . . . .’’ The court acknowledged the prosecutor’s observation but decided to proceed with the defendant present.

14 Practice Book § 42-47 provides: ‘‘Upon the direction of the judicial

authority, a defendant may be removed from the courtroom during trial or

hearing when the defendant’s conduct has become so disruptive that the

trial or hearing cannot proceed in an orderly manner. The judicial authority

shall advise the defendant that the trial or hearing will continue in the

defendant’s absence. A defendant who has been removed shall remain present in the court building while the trial or hearing is in progress. At the

time of the defendant’s removal, the judicial authority shall advise the defendant that the defendant may request to be returned to the courtroom if, at

the time of making such request, the defendant assures the judicial authority

that the defendant shall not engage in disruptive conduct. Whenever the

defendant is removed, the judicial authority shall instruct the jurors that

such removal is not to be considered in assessing the evidence or in the

determination of the case.’’

15 The defendant also argues that instead of removing him from the courtroom, Judge Vitale should have given him a cough drop, water, or a mask

of some kind, or ordered the courtroom microphones to be repositioned to

lessen the distraction caused by his noise. As support for this argument, he

cites an observation in the second competency report that throat lozenges

‘‘had a good effect’’ on him at Whiting, but he offers no legal authority for

the argument that the court was obligated to provide such accommodations

before concluding that he had waived his right to be present. We decline

to review this inadequately briefed argument. See, e.g., State v. Davis, 159

Conn. App. 618, 629 n.3, 123 A.3d 142 (‘‘[b]ecause the defendant has not

briefed this argument, we will not pass upon it’’), cert. denied, 319 Conn.

951, 125 A.3d 530 (2015).

16 There is no ‘‘bright line rule as to when a competency report becomes

stale.’’ (Internal quotation marks omitted.) State v. Jordan, supra, 151 Conn.

App. 37.

17 We disagree that the defendant’s repeated refusal to return from the

lockup should have alerted the court that he was unable to assist with his

own defense because there is no indication that these refusals, like his

courtroom behavior, were not the product of choice.

18 The defendant cites only a concurring opinion; see Illinois v. Allen,

supra, 397 U.S. 351 (Brennan, J., concurring) (‘‘[W]hen a defendant is

excluded from his trial, the court should make reasonable efforts to enable

him to communicate with his attorney and, if possible, to keep apprised of

the progress of his trial. Once the court has removed the contumacious

defendant, it is not weakness to mitigate the disadvantages of his expulsion

as far as technologically possible in the circumstances.’’); and a case that

is plainly distinguishable on its facts. See United States v. Fontanez, 878

F.2d 33, 36–37 (2d Cir. 1989) (defendant whose absence was result of being

taken into custody for unrelated crime did not waive right to be present

during his trial).