State v. Ross

conclude, initially may Additionally, hospital patient). symptoms patient’s negligence, in the absence reac- but normal with an uncomfortable are consistent decline medication, even if the later prescription tion to subsequently medical patient’s testing health and Krause v. be in error. See this conclusion to proves 169 Conn. 8. Because Hospital, supra, Bridgeport have occurred injuries and death could decedent’s properly court found absence of the trial negligence, loquitur inapplicable ipsa that the doctrine of res summary rendered present properly to the matter and in favor of the defendant. judgment is affirmed. judgment justices concurred. opinion In this the other MICHAEL B. ROSS STATE OF CONNECTICUT v. (SC 17335) Zarella, Lavery, Sullivan, X, Norcott, Vertefeuille, C. Foti and Dranginis, Js. —officially released January January 14, Argued 2005* * January slip 14, 2005, was released as a the date this decision purposes. opinion, operative procedural is the date for all substantive and with public defender, assistant Holdridge, John public Weisfeld, was Lauren senior assistant whom the chief defender, for the in error (office public defender). attorney,

Harry Weller, supervisory assistant state’s Kane, attorney, with whom were Kevin state’s Jessica and, Probolus, special deputy attorney, assistant state’s brief, Marks, supervisory on the Susan C. assistant in error attorney, (state). state’s for the defendant T. R. for the defendant. Paulding, Jr.,

Opinion is the SULLIVAN, brought C. J. This writ of error public in chief defender error, the office the Connecticut, of the state of the trial court’s challenge permission appear denial of its motion for as next B. defendant, Ross, party friend of the Michael and as a postcon- in in interest, an intervenor or amicus curiae in judicial proceedings viction the three criminal cases affirm against judgment the defendant. We the the trial court. procedural history.

The the following record reveals The defendant in three cases with charged eight “was felony in capital counts of violation of General Statutes 53a-54b. The trial court dismissed two counts for lack § jurisdiction jury trial, of territorial after a the defen- and, capital felony dant was convicted of four counts of capital violation of 53a-54b and two counts of (5) § felony in v. Ross, violation of 53a-54b State 230 (6).1 § 1 provides part: person guilty § General Statutes 53a-54b in relevant “A capital felony following (5) of a who is convicted of ... murder by kidnapper kidnapped person during kidnapping of a the course of the safety; person (6) be or before such is able to return or returned to murder committed in the course of the commission of sexual assault the first degree . . . .” 580 646 A.2d 1318 cert. 183, 188, 194-95, (1994),

Conn. Ct. L. Ed. denied, 513 U.S. 115 S. 2d separate penalty phase .... After a hear (1995) 53a- pursuant (Rev. 1987) § to General Statutes ing appealed death. The 46a, was sentenced to defendant to this court. We affirmed the defen judgments from convictions, dant’s but determined that certain eviden penalty phase tiary by the trial court had rulings ability to impaired the defendant’s establish mitigating we reversed and, accordingly, judgments factor Ross], supra, v. penalty. death 286. imposing [State penalty remand, phase hearing On a second held which an factor for jury, aggravating before a found capital felony and no mitigating each conviction factor. court, Miaño, jury’s findings, In with the accordance State J., imposed on each a death sentence count.” Ross, A.2d 213, 223-24, 849 (2004). 269 Conn. appealed judgments from this again Id., 392. court, and we affirmed the sentences death. September Thereafter, 21, 2004, Paulding, Jr., T. R. three criminal attorney, appearances entered appearances were in against cases the defendant. His attorneys appearances by employed lieu of the public time, defender’s office. At the same Paulding Clifford, J., indicating the trial that court, sent letter to any appeals the defendant intended to waive further or collateral attacks on his death sentences and wanted the court to set an execution date. this The criminal conduct in case occurred in 1983 and 1984. Section 53a- purposes has several since 1984 for not 54b been amended times relevant although convenience, here. For we cite the current version of the statute prior 01-151, 3,§ take the fact that to the No. we note of enactment of Acts, provision concerning the 2001 of the statute murder commit- Public degree first ted in course of the commission of sexual assault designated (7) (6). been subdivision rather than had subdivision emphasize right We that the defendant has not “waived” his to further ability legal proceedings in the sense that he has forfeited the to exercise parties may right agreement in The are in defendant the future. that the petition any corpus right exercise his to file a for a writ of habeas at time that, so, stayed. if will be he does execution 6, 2004, on at The trial court held a October his decision to which it canvassed the defendant about The to the death sentences. challenges waive further anyone he had not authorized indicated that on his legal proceedings other than to file Paulding alcohol, behalf, that he was not under the influence of any kind, or medication of that he had not drugs that he had discussed promises, received threats or with Paul- legal proceedings his desire to waive further questions purpose that he had no about the ding, and indicated that the defendant hearing. Paulding him in his February, regarding had contacted they desire to waive further and that had proceedings over the spoken on numerous occasions together year. course of the also indicated that he had Paulding seen “no evidence whatsoever” that the defendant was incompetent “very strongly” and that he felt that the proceedings defendant understood the nature of the and was able to assist in his defense. stated Paulding that the defendant had come to his decision after con- period the issue for a of time. The trial sidering long previous competency court noted that examinations had resulted in a determination that the defendant was competent and indicated that it saw no evidence to January 26, conclude otherwise. The court then set 2005, as the defendant’s execution date. in 1, 2004,

On December error filed a proceed motion to in pauperis petition forma and a writ of certiorari Supreme the United States Court. in error represented filings that the defendant had refused to an affidavit sign indigence support of the motion he was incompetent. because The United Supreme States Court denied the motion January 10, 2005. 2004, plaintiff

Also on December in error 1, filed in Superior permission Court a “motion for appear defendant]; as ‘next friend’ of and (1) (2) [the

582 as an intervener or as amicus party as a in interest or in error in its motion that plaintiff alleged curiae.”3 The appear as the defendant’s next friend standing it had incompetent defendant “was when he ter- because the representation him; [plaintiff minated the error’s] presently incompetent; is because defendant] [the has had a [plaintiff significant because the error] relationship with for some seventeen [the defendant] permission . . . In the motion for years .” addition to plaintiff in error with the court appear, lodged stay of the defendant’s execution clerk a motion for as to whether judicial a determination pending stay a motion for of execu- competent defendant is pending tion resolution of the consolidated pending whether ordered this court to determine litigation system racially is discrimi- penalty Connecticut’s death natory and therefore violates the state constitution and statutory law (consolidated litigation).4 3 permission appear in error has withdrawn its motion for party in interest or as an intervenor. 4Several defendants who have been sentenced to death in Connecticut they petitions corpus have filed for writs of habeas in which claim that punishment arbitrary, discriminatory, capital illegal, scheme is the state’s disproportionate, primarily wanton and freakish due to the influence of arbitrary imposition capital punishment race and other factors on the Reynolds, 1, 226-34, throughout See State v. 264 Conn. 836 Connecticut. (2003), denied, 908, 1614, A.2d 224 cert. 541 U.S. 124 S. Ct. 158 L. Ed. 2d 106, 377-78, (2004); Colon, 272 Conn. 864 A.2d 666 254 see also State Breton, 327, 405, 778, denied, (2004); State v. 264 Conn. 824 A.2d cert. 1055, 819, Cobb, (2003); 124 S. Ct. 157 L. Ed. 2d 708 State v. 251 Conn. U.S. 285, denied, 499, (1999), 841, 106, 743 A.2d 1 cert. 531 U.S. 121 S. Ct. Webb, 389, n.73, (2000); L. Ed. 2d 64 State v. 238 Conn. 504-505 680 A.2d remand, 448, (1996), denied, aff'd after 252 Conn. 750 A.2d cert. 93,148 (2000). December, 2002, 531 U.S. 121 S. Ct. L. Ed. 2d 53 In Chief appointed former Chief Justice Justice Sullivan Robert Callahan to serve special manage litigation as a master to of these claims. See State v. Reynolds, supra, litigation pending 233. That at this time. present petition The defendant case has never filed habeas corpus lodged stay raising this claim. The in error the motion for a pending filing resolution of the claim rather than it because the motion properly appear not be before the trial court would unless the motion to friend, party granted. as next interest or intervenor were

583 Thereafter, the state filed motion a determi- seeking nation as to whether competent the defendant was waive his to seek rights postconviction relief and whether his waiver was knowingly voluntarily competency made. The court held a on Decem- hearing 9, ber 2004. Because the trial yet court had not ruled on the in error’s appear, motion to in error attended the only as an hearing observer. represented

Paulding to the trial court at the Decem- 9, ber that he had hearing represented first in 1995 or 1996 when the defendant was awaiting penalty his second phase hearing. The defen- dant indicated at that time that he wanted proceed pro stipulate se and to to the existence of an aggravating May, factor. In competency he underwent a evalu- ation to determine capable whether he was of represent- ing himself and was found competent. Because the attorney state’s indicated that he would not in engage discussions with the defendant unless he repre- by standby sented counsel, Paulding agreed to take on that role. After extensive negotiations, the defendant and the state stipulation entered into a aggravat- ing factor existed and no factor existed. The mitigating trial court would not stipulation, allow the however. Paulding stated at the December position defendant’s had been through- consistent

out the 1995 proceedings: he believed that a Although factor mitigating existed, he was willing stipulate that one did not exist. If the trial court refused to allow stipulation, then however, the defendant would public allow the represent put defenders to him and to on an aggressive penalty phase defense at the hearing. stated that he next

Paulding heard from the defendant in February, 2004. The defendant indicated at that time anticipated that he that this court affirm would his death pending appeal sentences and that he did not wish tht challenge any way. determination in told Paulding represent him. 2004, that he would July, to the defendant spoken that he had stated Paulding twenty thirty by telephone approximately person and the date of the December 2004, and July, times between he and the defendant stated that Paulding 9 hearing. case discussions about the and detailed lengthy had had a lack of any indication of he had “never seen and that cloudiness competence or or a lack understanding example, Paulding anAs judgment.” defendant’s] [the statutory aware of the the defendant was stated that date for the execution setting time constraints not so that he would arrange things wanted to and public to allow the agreed until 2005. He be executed of this file a motion for reconsideration defenders to sentences in order affirming his death court’s decision purpose. achieve that delay proceedings the defendant had been also stated that Paulding options, legal including in detail of all of his informed over the con- litigation in the consolidated participating penalty scheme. The stitutionality of the state’s death he did not want clearly indicated that defendant petition and that the pursue any options of these had been Supreme States Court certiorari to the United his will. against filed days hearing, the December Paul-

Two before employed a Chaplin, psychologist met with Paul ding correction, who met department regularly and, between 1988 and 1992 after with the defendant Chaplin and the a between 1992 and 1999 when gap prisons, to different since assigned defendant were date Chaplin that, indicated since the execution 1999. Latter, psychiatric social set, was either he or Thomas every day. had met with the defendant worker, Depo- including several medications taking drive, Klonopin and and Well- Lupron to reduce his sex antianxiety Chaplin did not believe butrin, medications. him as depressed but described that the defendant dysphoric, unhappy, anxious, or somewhat sad or Chaplin which believed to be a natural under feeling Chaplin the circumstances. was aware of the defen- past attempts may dant’s suicide and believed that he have depressed been at that time. He found the defen- dant rational, coherent, however, to be logical competent believed that the defendant had been since he first met him in 1988. stated that the

Paulding defendant had also met regu- larly with Tress, Michael psychiatrist, the month and a half preceding hearing. Tress indicated to that he Paulding believed that the defendant was rational and logical, and Tress saw no evidence of sui- cidal ideation. Tress also believed that the defendant’s depression was under control. He saw no evidence that would make question him competence. the defendant’s Paulding that, stated on the of basis his discussions with the defendant and with his therapists, he believed that the defendant had arrived at his decision to waive further in legal proceedings logical rational manner.

The trial court also canvassed the defendant. He stated that, addition to the medications listed he was Paulding, Vistaril, an taking antianxiety medica- tion, on an as needed basis. The defendant also stated medications did not affect his understanding proceedings. the court He a detailed and gave sub- stantially accurate account of the past legal proceedings twenty years. the three criminal cases over the last complete The defendant also indicated that he had a understanding options available legal him, an including appeal Supreme to the United States Court and federal and state habeas actions. He indicated that pursue options. he did not want to those The defendant denied that was suicidal and stated that he wanted to waive further legal spare in order to his proceedings family and pain the families of the victims the of further He was aware

public also indicated that he proceedings. stay change his mind obtain that he could to the time of execution. up execution state’s presented cases, had their parties After the a matter attorney requested a brief recess consider attention, to his which just brought that had been reconvened, When the court the state’s court granted. had that he felt that he an attorney obligation stated Goodrow, advise that he had met Karen the court lobby public office, in the attorney with the defender’s before the and that Goodrow hearing courthouse was had that she believed that stated attorney The that the trial competent. not state’s asked Goodrow the basis for her belief. question court about Goodrow, who was in the audi- court addressed ence, willing her whether she would be and asked until asked for a recess questions. answer Goodrow “compose and to after lunch order to [herself]” a five other matters. The court granted reschedule Sulli- recess, After Deborah Del Prete minute recess. attorney public office, van, another with the defender’s public that the defenders addressed the court and stated only were observers and were not at the prepared present She further stated that evidence. “very emotional” and did not want to Goodrow testify. that the defend- public Del Prete Sullivan stated ers evidence of the defen- willing present would be in incompetence plaintiff dant’s at a on the hearing permission appear. for The court error’s motion not if it would evi- stated that it did know allow such presented dence motion for hearing to be at the the permission appear, require that it not but would present hearing. Goodrow to address the court at the At the hearing, the conclusion the trial court stated “clearly defendant was lucid understood [and] questions, attorney’s questions. He is court’s articulate, clearly educated, intelligent, insightful, understands, my opinion, the lines he is forgoing, certainly firm in and he his decision.” The court layper- to a that, although appear further stated it would competent any “was under stan- son that the defendant apply,” required dard that would the court additional as to had information whether defendant mental disorder, disease or defect that affect deci- might his sion. the court ordered that the Accordingly, competency examination Michael undergo Norko, psychiatrist, and scheduled a competency hearing 28, December 2004. The court also scheduled a hearing on the plaintiff appear error’s motion to on behalf the defendant for December 2004.

At hearing plaintiff on the error’s motion to appear, plain- the trial court heard from the arguments error, attorney. tiff in and the Paulding plain- state’s tiff in error made an offer of some of the evidence that present competency it would at the if the court allowed it participate,5 but indicated that it had “a great deal of relevant information question to the not available” at that time. The court concluded [was] that the in error did not have as a standing party of interest or as an appear intervenor to in the postconviction The court proceedings. also denied the plaintiff in error’s request participate proceed- 5Specifically, represented in error that the defendant was upset competency when the trial court ordered a evaluation and it that was upset victims, himself; clear that he was not for the families of the but for attempted times; Paulding’s he has to commit suicide three discussion of dysphoria misleading the defendant’s because that condition is defined by anxiety, depression restlessness; as an emotional state characterized responded question the defendant never to the court’s as to whether he accepted justice execution; of his the court never asked the defendant clemency; determining compe whether he wanted to waive the standard for tency Peyton, 312, 314, under Rees v. 384 U.S. 86 S. Ct. L. 16 Ed. 2d (1966), prevented making is not whether the defendant is from a rational choice, ability substantially affected; but whether his to do so is and the mitigating attempted defendant lied about the lack of factors when he to stipulate to the death sentence. With to the motion respect as an amicus curiae.

ings friend, next the court con- appear as defendant’s to the it reason to that the defen- cluded that had no believe not it concluded that competent. Accordingly, dant was appear no to standing in error had plaintiff however, stated, at The court that next friend that time. incompetent to if the were shown be at defendant would its decision. The date, later the court reconsider in plaintiff stated it would not allow the error court that competency December participate 28, in the in had plaintiff but if the error information hearing, that it should the information issue, give relevant to that Paulding. 23, plaintiff in Thereafter, 2004, on December in this review of the trial filed one motion court for error competency a stay denial motion for court’s of its a second motion stay execution, and for and hearing stay competency hearing and of emergency for in plaintiff The error indicated motions execution. a writ of challenging that it intended to file error plaintiff in court’s on the error’s rulings standing trial 2004. This court dismissed both 27, on December 2004, in 28, On error motions. December the trial court claiming this writ of error brought had refused to allow the error improperly (1) present evidence and to cross-examine witnesses at plain- 28, hearing December denied (2) appear request tiff in error’s as an amicus curiae. competency hearing held as scheduled on 28, Norko testified at the December 2004. competency had first evaluated the defendant’s him 1995 and that he had had no contact with between with the meeting that time his Decem- request response ber the court’s another evaluation.6 Norko met with the defendant approximately spoke three hours. He also with two psychiatric psychi- social worker and a psychologists, many atrist, all of whom had known the defendant for years, and with and Goodrow. On the basis Paulding of his interview with the Norko found that defendant, position he had an his understanding legal excellent and forgo the ramifications of his decision to further legal the defendant was occa- proceedings. Although sionally emotional, appropriately he was so. His deci- sion to forgo appeals further and collateral challenges to his convictions was based on his belief that it would morally be wrong subject the families of his victims pain to the that would be caused proceedings go years. could on for

Norko did not believe that the defendant suffered depression. from clinical He sleeping well, had a normal appetite level, and a and good energy he was process able to concentrate and to thought, had no memory expressed disturbances no suicidal thoughts. Norko did believe that the defendant suffered from a number of mental diseases, defects, disorders or namely, a “depressive disorder not otherwise speci- fied,” sadism, possibly “anxiety sexual disorder not otherwise specified,” personality and a disorder with narcissistic, borderline and antisocial traits. A “depressive specified” disorder not otherwise is a disor- depressive der with characteristics, but which does not major meet the criteria for depression. Norko did not believe that depressive the defendant’s disorder inter- ability fered with his think about his situation and options. diagnosis Norko’s of sexual sadism was based reports psychiatrists. of other Norko did not believe that the disorder affected the ability defendant’s report describing Norlco also submitted to the trial court a written his investigation competency setting of the defendant’s forth his con clusions. Finally, not believe that the defen-

to reason. Norko did ability affected his to under- personality dant’s disorder and to make decisions legal proceedings stand the about them. that had called after

Norko testified he Goodrow newspaper she had about that evidence reading competence. Goodrow Norko that the defendant’s told shortly she met with the defendant for three hours had after and that she had found him to be Thanksgiving times the meet- quite emotional, crying during several he his fight that was unable continue ing. thought She emotionally he penalty death because against the expressed concern his actions exhausted. He also that any families. would comfort to the victims’ bring not who person that it not unusual for a Norko testified is important that will affect his has made an decision family may the not members to that decision recognize not be the one and that such ambivalence does right person incapable making mean of that rational choice. that defen-

Norko testified the medications that the probably improve ability dant is his to make receiving than with it. saw no decisions rather interfere Norko or thought disorder, of a delusional beliefs evidence psychosis. He also saw no evidence of suicidal ideation.

On of his testified that investigation, the basis Norko is not he had no reason believe that defendant competent. have The defendant did occasional brief episodes anxiety of intense for which takes Vistaril. has stated he did not that Although important during believe that he should make decisions heightened anxiety, these of he also stated moments episodes that are brief. Norko did believe that not disorders, mental diseases or defects from substantially which affect his suffered ability make a rational choice.

The defendant also testified at the He hearing. stated episodes that he had occasional anxiety intense episodes that the were relieved medication. taking he had occasional Although doubts about whether his pain execution would end the of the victims’ families, he believed that it would, and that belief was the reason for his decision. The defendant also indicated that he accept would a sentence of life imprisonment immedi- ately if it were offered and that he believed that he accomplish could works if good happened. He did not believe, however, that that happen would ever did not think possibility overturning justified death sentences the cost to himself and to the families of the victims.

At the conclusion of the the trial court hearing, stated competent is a Paulding attorney and effective who is representing ability. his client to the best of his The court found that the defendant was not making his decision any on the basis of threats, promises or coer- cion; he was lucid, educated, intelligent, insightful, knowledgeable, firm in his decision and understanding questions of the posed him; to he had a grasp of the legal issues involved and was aware of his legal options; none of the medications taken the defendant have ability affected his to understand the or to proceedings make rational decisions; the defendant is not motivated by a desire to commit suicide, but concern for the victims’ families; and the defendant is aware that he can up his mind change the date of the execution. The court concluded that the capacity defendant has the to understand and, his choices therefore, compe- tent under the standard set forth in Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 16 L. Ed. 2d 583 (1966) (defendant is competent to waive further challenges to death sentence when “he has capacity appreci- [the] position ate his and make a rational respect choice with or continuing further abandoning The litigation”). vol- knowingly, found that the defendant

court further waived his to further untarily intelligently right and his death sentences. challenges to on this Thereafter, at oral before this court argument represented that it plaintiff writ in error error, of incompetence had had of the defendant’s evidence repre- In light never court. of this presented been despite plaintiff in error’s failure sentation, and proof trial this court court, make an offer of to the to file issued in error authorizing an order proof a of detailing with this court written offer present competency hearing. it would at a evidence that error of proof, attaching The filed an offer Stuart proposed testimony summaries Goldsmith, psychiatrist; Eric Grassian, psychiatrist; attorneys public office, namely, five with the defender’s Barry Weis- Goodrow, Montonye, Paula Lauren Butler, Nave, feld Robert the state death Holdridge; and John penalty abolition coordinator Connecticut Amnesty director branch of International executive Pen- Network to Abolish the Death Connecticut offer alty; Ross, Dan the defendant’s father.7 The proof plain- also attached several documents that the proposed tiff error to introduce exhibits. summary testimony proposed of Grassian’s stated: who are held in confine- prisoners segregated frequently develop ment8 severe mental disturbances proof, filed a After the in error filed its offer of the defendant proof public viewing ground that motion seal the offer of from on the by protected attorney-client proof offer of contained information privilege. Thereafter, this court an in camera review of the offer conducted proof identify portions granted privileged the defendant’s portions. motion as to those summary “segregated as defined confinement” confinement alone fifty-six ninety square feet, opportunities in a cell with minimal of from interaction, conjoint religious services, for social recreation or minimal occupational very programming educational or limited environmental stimulation. attention and concentra- impaired alertness,

including withdrawal, hyperresponsiveness stimuli, tion, sleep dis- matters, with trivial preoccupation obsessive severely affected, psy- and, in those most turbances affect delirium; these disturbances can chotic ability defense; living to assist in their own prisoners’ overwhelming an sentence of death can cause under desperate and fear in a helplessness resulting sense of by challenges control further regain waiving need to not examined the sentence; to the death Grassian has sup- many of Norko’s conclusions were not defendant; skepti- by “professional and lacked ported the evidence Grassian believed that Norko had cism”; example, the defendant’s recognize intelligence failed to for him his “hidden possible would make it to conceal Elliott, wrote a letter to Martha the defendant agenda”; that his decision was driven journalist, indicating by concern by pain more a desire to end his own than he knew that he victims, for the families of his but say publicly;9 not although could victims, his expressed concerns about the families of attorneys of his that he arguments dismissed help prisoners could the other on death row continu- attempt trip” appeals impose “guilt his ing consistently that the defendant him; Norko’s statement proceedings had desired to waive further for the last years supported by record; ten is not Norko stated attempts that the defendant’s suicide did not indicate depression explain severe but failed to them ongoing the record showed that the defendant felt adequately; helpless tendency and out of control and had a toward obsessional which could be exacerbated thinking, conditions of confinement and result in suicidal his the defendant has indicated that he is iso- tendencies; day twenty-two twenty-three lated for or hours each intolerable; and finds the conditions his confinement proof. to the 9 Thisletter was attached error’s oiler has become that the defendant suggests and the record despair and, there- his distress and incapable bearing to his challenges to waive further fore, his decision voluntary product free, not the of a sentences is death process. decision-making and rational testimony summary proposed of Goldsmith’s to examine the opportunity had not had the stated: he opinion a conclusive give and was unable to ques- he had serious competency; nevertheless, his as to that Norko had not ade- competency about his tions may that several factors addressed; he believed quately defen- affected the voluntariness of the have negatively his death challenges further forgo dant’s decision with diagnosed the defendant has been sentences; and lability, impulsivity mood disorder with emotional would be exacerbated stress depressed affect that effect waiver; voluntariness of his and reduce the and abandon- girlfriend defendant’s loss of his and other activities on the voluntari- writing ment of his fully explored; waiver have not been ness of his confinement of the conditions of the defendant’s effect assessed; should be the voluntariness of his waiver tendencies on the effect of the defendant’s suicidal explored. voluntariness of his waiver should be proposed testimony of the The summaries of the attorneys stated: the conditions of defendant’s former confinement have deteriorated the defendant’s death; to desire the defen- have caused forgo has inconsistent about his desire to dant been sentences; the defendant further to his death challenges imprison- desire to be sentenced to life expressed has proceed- further ment; wanting forgo his reasons consistent; not been he has stated that have ings when proceedings long ago to waive farther decided and that he has to trust that his was clearer thinking emotional to make a decision decision because he is too attorneys to visit time; he invited his former at this try they would he was aware that though even him he proceedings; further pursue persuade him normal to fake a attempting to be at times appeared able to com- longer was no behavior; and demeanor row; on death prisoners the other freely with municate expressed their had prison guards that the angry he was in Connecticut penalty is no death that there beliefs he did prove wrong; want them appeared to to his challenges that certain appear to understand not phase penalty result in a third could not death sentences of other ignorance and he demonstrated hearing; procedures. the law and aspects of testimony summary proposed stated: The of Nave’s in the last fifteen times has visited the defendant Nave dur- very depressed be appeared year; very strongly believes visits; those Nave ing if his execu- attempt will to commit suicide that he will never stayed; is the defendant believes tion victims’ families and trial; fair he believes that the get a conditions him; hate he is frustrated with the public he is and frustrated confinement; of his saddened prison- he has that the other celebrity; his loss of stated row were brutal murderers who took no ers on death for their crimes and bravado responsibility engaged had “the real guts” go while he grandstanding, beliefs execution; forward with his he has delusional public exalted role in the debate on the death about his public and he believes that he can penalty; change pro- if he waives further belief that he is a “monster” ceedings. testimony summary proposed of the defen- extremely

dant’s father stated: the defendant narcis- age reason,” he is “not unlike a child before the sistic; he does not apparently finality death; unaware of the martyr being want to die but “revels the attention incapable narcissism renders him and his brings”; him out of touch a rational choice and “leaves making reality.” with con- proof10 attached to the offer of

The documents presented the same information tain much of testimony of the witnesses. proposed in claims in this writ of error that plaintiff The error denied its motion to improperly: (1) the trial court next friend without appear providing as the defendant’s evidence of the defen- opportunity present it with an incompetence witnesses; and to cross-examine dant’s in plaintiff its the (2) denying and abused discretion appear as an amicus curiae. The state request error’s plaintiff that: the in error has no federal (1) counters participate in a right common-law or constitutional evidentiary whether the defen- full to determine competent when it has made no threshold show- dant is represented and the defendant incompetence ing by counsel; and the court did not abuse its discretion (2) by plaintiff request appear the in error’s as denying it was clear that it intended to an amicus curiae when party. participate proceedings in the adversarial We with the state. agree

I Before the substance of the addressing claims, error’s we must address the defendant’s claim jurisdiction that this court lacks over the writ of error plaintiff in error is not Practice aggrieved. because the provides part: in relevant “Writs of error (a) Book 72-1 § only may be from brought for errors in matters of law superior supreme a final of the court to the judgment by writings 10 These include numerous letters and other authored penalty, defendant, newspaper articles about the defendant and the death attorneys defendant, letters from the defendant’s former and others to the attorneys by and a notes taken the defendant’s former statement stipu Monsignor attempt Reverend John Gilmartin about the defendant’s penalty. late to death binding a decision (1) cases: following in the court neces as otherwise (4) . . . and nonparty an aggrieved and jurisdiction agree in aid of its sary appropriate or held law.” We have principles and usages to the able determining test fundamental [classical] that “[t]he twofold a well-settled encompasses aggrievement aggrievement party claiming first, determination: personal and specific successfully demonstrate must decision, as matter of the subject interest legal such as is the interest, from a general distinguished community as a the members concern of all must claiming aggrievement Second, party whole. specific personal successfully establish injuriously affected specially has been interest legal quotation omitted.) marks (Internal the decision.” Zoning Board Inc. v. Supermarket, Bongiorno (2003). 833 A.2d 883 Conn. Appeals, 266 is not error argues personal legal specific it has no because aggrieved injuriously affected specially and interest that has been only a decision, general but has trial court’s penalty. death in opposing interest who seeks next person that a clear, however, It is will proceeding very nature friend status in the mat- interest specific personal legal have no only that he is friend must show Rather, ter. a next . . . and . . . interests of “truly dedicated to the best relationship party with” a significant some has] [he there is some reason an interest and that who has such appear for himself. in interest cannot party quotation omitted.) marks omitted; internal (Citation Ct. 149, 163-64, 110 S. Arkansas, 495 U.S. Whitmore v. plaintiff in error (1990). L. Ed. 2d 135 1717, and, to the trial court make this claim was entitled to by the trial court’s determi- accordingly, aggrieved contrary A conclu- standing. it had no such nation that by the trial rulings render unreviewable sion would court next friend status. we con- denying Accordingly, jurisdiction clude that we have to hear the writ of error.

II We next address the substance of the improperly error’s claim that the trial court denied its appear motion to as the defendant’s next friend without opportunity present it with the evidence providing and to cross-examine witnesses at the defendant’s com- petency It hearing. argues that, penalty the death context, by person the mere a with colorable allegation standing appear as a next friend that a defendant incompetent requires evidentiary the court to hold person at which the friend status seeking next present must be allowed to evidence and to cross-exam- support claim, ine witnesses. In of this error that numerous courts have determined argues sixth, that the and fourteenth eighth amendments require the United States constitution that the court compe- hold an adversarial to determine the proceeding tency of a defendant to waive further legal challenges to a sentence of death. We disagree. preliminary matter,

As a we set forth the standard person of review. Whether a who has that a alleged is incompetent to waive further challenges to his death sentence is entitled present evidence at competency question hearing is of law over which plenary. our review is v. Arkansas, supra, Whitmore

In 495 U.S. Supreme question United States Court considered the of party whether third has to standing challenge validity imposed of a death sentence on a capital defen- dant who has elected to his forgo right appeal. Ronald by Gene Simmons had been sentenced death an Id., Arkansas state court. 153. Simmons Thereafter, noti- fied the court of his intent to waive his to direct right appeal and, competency after a the court found hearing, another Whitmore, Id. Jonas competent to do so. him intervene permission to inmate, sought row then death individually and as Sim- proceeding both Simmons’ Arkansas Supreme Court of next friend. Id. The mons’ and the standing have that Whitmore did not concluded petition his Supreme Court granted United States Id., certiorari. 153-54. that, noted histori- Supreme States Court

The United next establishing cally, prerequisites there were two “First, a corpus habeas context. standing friend explanation— provide adequate friend’ must ‘next incompetence, or other inaccessibility, such as mental appear in interest cannot disability—why party the real Second, the action. . . . prosecute on his own behalf to truly be dedicated to the best the ‘next friend’ must person of the on whose behalf he seeks interests that a suggested . . . and it has been further litigate relationship have some significant ‘next friend’ must party omitted.) with the real in interest.”11 (Citations no reason Id., 163-64. The court concluded that it found Supreme Arkansas Court finding to disturb the at the competency that Simmons’ had been established by competency questioned at which he was hearing, Arkansas, permitted tice. And in status in state courts. showing that one friend in a federal habeas as a matter of state common law. See Phoebe G. of a federal court absent “[wjithout deciding whether a ‘next friend’ ently or other similar litigate 743 A.2d 606 The United States these limitations recognized federal doctrine of ‘next friend’ necessary his own cause due to mental supra, keeping the habeas proposed disability.” Id., as a matter of common (1999). 495 U.S. condition for ‘next friend’ with the ancient Id., Supreme applied corpus statute, ‘next friend’ 165. The United States corpus congressional 164-65. The Arkansas 164-65. to that statutory Court proceeding tradition of the recognized that intervention This standing incapacity, which authorization, law the may court was authorized real standing codified the historical ever invoke the is no broader Supreme Supreme has v. proceeding. Whitmore availability party lack doctrine, adopted Solnit, in federal court we think the in interest Court had Court stated that access by 252 Conn. 68, of next friend that standard we conclude than jurisdiction statute and by is unable what appar a next court, scope prac is a of a Id.,

counsel and the court. 165. The record had admitted into evi- psychiatric interview that been from suffering revealed no “evidence that he was dence substantially disorder, or defect that disease, a mental make an decision.” capacity intelligent affected his to Id., 165-66. the court concluded Accordingly, proceed as Simmons’ next standing Whitmore lacked to Id., friend. 166. incompetence in this context

The standard for mental In Peyton, supra, was set forth in Rees v. 384 U.S. 314. death defendant, who had been sentenced to Rees, petition a state court in filed a for habeas Virginia, States District Court corpus alleging the United The Id., the conviction was unconstitutional. 312-13. petition, District Court denied the and the defendant appealed Appeals to the United States Court of which affirmed the Circuit, judgment the Fourth peti- The then Id., District Court. 313. filed Supreme United States Court. tion for certiorari his counsel to Thereafter, Id. the defendant directed petition legal withdraw the and to further forgo Id. The defendant’s counsel advised the proceedings. court that he could not accede to the defendant’s he had doubts about the defendant’s request because competency. Supreme mental Id. Court determined Court that the matter should be remanded to District to make a determination as to whether the defendant capacity appreciate position his and make “has [the] respect a rational choice with or abandon- continuing litigation further or on the other hand whether ing from a mental or defect suffering disease, disorder, may substantially capacity prem- which affect his will be end, appropriate ises. To that it for the District subject psychiatric Court and other [the defendant] appropriate and, medical examinations so far as neces- sary, temporary hospitalization pur- federal for this pose.” 314. Id., subsequently made Court Supreme

The United States the trial require does not that the constitution it clear person by a Rees a request hearing a grant court to person pre- has not friend status if that seeking next the defendant evidence” “meaningful sented 732, U.S. Baal, In incompetent. Demosthenes L. 2d 762 (1990), 110 S. Ct. 109 Ed. court. The to death in Nevada state

was sentenced relief postconviction for state petition defendant filed a Id. The court held petition. then withdrew the but the defendant’s com- evidentiary to determine hearing competent he was and determined that petency Id., waiver of his 732-33. intelligent rights. had made an peti- a parents filed Shortly thereafter, the defendant’s relief as the defendant’s corpus for federal habeas tion they petition, alleged In the Id., next friends. 733. support In of this competent.

the defendant was not who they psychiatrist relied on an affidavit of claim, and an affidavit had not examined the defendant The United States District Court defendant’s mother. Id. established that the defen- concluded that the record psychiatrist’s affidavit competent dant was and that an addi- conclusory and insufficient to warrant was Accord- competency Id., examination. 733-34. tional appeal petition. Id., court denied the 734. On ingly, that Ninth Appeals United States Court of for the to the Circuit, majority petitioners of the court held that the minimum of the defendant’s showing had established a stayed the defendant’s execution. Id. incompetence and Supreme Court, to the United States appeal On held that the state court’s determination that the court record competent supported defendant was conclusory and psychiatrist’s and that the affidavit was Id., or substance. 735-36. The lacking foundation “in Supreme that, Court concluded the absence incompetency . . . the Dis- evidence’ of ‘meaningful correctly petitioners’ denied motion trict Court [the] evidentiary question on the for a farther [the competence proceed.” to waive his right defendant’s] Supreme Id., Accordingly, 736. omitted.) (Citation by stay of execution entered Court vacated the Id., 737. Appeals. Court in error did not men present case, In the Demosthenes in its pro but that due brief, argued tion be requires a Rees competency determination to cess requires and, therefore, setting made in an adversarial the case present of a next friend to participation the claims incompetence in cases where the defendant of any showing threshold competent he is without that it cites support In of this incompetence.12 argument, Wainwright, S. Ct. 91 Ford v. 477 U.S. 106 and O'Rourke (plurality opinion), L. Ed. 2d 335 (1986) Ended, per We are not 1998). F.3d 560 Cir. (8th 153 suaded. Wainwright, supra, 477 U.S. 409-10 (major-

In Ford v. that the amend- ity eighth the court concluded opinion), prisoners execution of insane ment barred the required District Court was considered whether the evidentiary to determine the defen- hearing hold an insanity petition on the defendant’s ruling dant’s before that he was insane. corpus ground for habeas on the when law, governor, 410. Under Florida the Id., of death that a defendant under sentence informed 12 brief, Although in error did not mention Demosthenes in its the pointed argument this court that not all courts have it out at oral before incompetence compe required showing meaningful before a of evidence of Sup. 1005, tency provided. See, e.g., Lockhart, Franz v. 700 F. is persons competency hearing though (E.D. 1988) (ordering even Ark. reasonably presented seeking had not evidence that “can next friend status was to cast doubt” on state court’s determination that defendant be said attempted competent). not, however, to reconcile Demosthenes with It has presented process requires incompetence that a case for to be its claim due provided any why competency hearings reasons at all Rees and has not beyond requirements adopt goes that the this court should standard process. due stay the required execution insane, be was might psychiatrists to appoint a commission of three and to After the Id., receiving the defendant. 412. examine commission, required report governor had the mental determine whether penalty of the death to understand the nature capacity on him. If the why imposed the reasons it was had capac- that the defendant that determined governor not, If then defen- ity, then a death warrant issued. facility. A to a health Id. was committed mental dant this Supreme Court determined plurality constitutionally inadequate because, procedure was the truth- it failed to include first, process. Id., opinion). plural- seeking (plurality assistance from ity stated “without adversarial when prisoner’s representative—especially psy- opinion proffers based on much more chiatric state-appointed than extensive evaluation that of substantial commission—the factfinder loses the bene- Id., potentially probative information.” 414. The fit procedure was also because it failed inadequate Florida representative any opportunity prisoner’s “to afford the clarify experts’ opinions or the or challenge to state . . 415. the Id., Finally, plurality methods . .” con- was procedure cluded that the flawed because it took entirely branch, the did place within executive which necessary for neutrality reliability not have “the that is ” proceeding. Id., in the 416. the factfinding Accordingly, the plurality concluded that defendant entitled competency Court. 418. hearing Id., a District support

We that Ford does the conclude not person in claim that a who seeks next friend error’s a who status on has been ground incompetent sentenced to death is to waive further legal permitted present be for proceedings must case evidentiary The competency hearing. plurality at an merely competency hearing Ford held that held after

604 been showing has made that the defendant is insane must comport procedural requirements. with certain question It did not address the of what constitutes a showing require sufficient an adversarial the first instance.13

We also believe that the in error’s reliance on O’Rourke v. Endell, supra, 560, misplaced. 153 F.3d case, In that the criminal defendant, Michael O’Rourke who had been sentenced to (defendant), death court, petition Arkansas state filed a with the Arkansas Supreme permission Court seeking proceed in state court with postconviction his motion for Id., relief. 565. Supreme granted petition Court in part, but the trial court denied relief. Id. The defendant then filed an appeal. Thereafter, Id. the defendant sent a letter to Supreme the Arkansas Court seeking to withdraw his appeal. stayed Id. The court the appeal and remanded the matter to the trial court for a competency hearing. Id. It also ordered the trial court appoint new counsel plurality opinion Wainwright, supra, We also note that the in Ford v. necessarily represent governing 477 U.S. does not law on this issue. fragmented single explaining “When a Court decides a case and no rationale eqjoys Justices, may holding the result the assent of five of the Court position be viewed as the taken those Members who concurred in the judgments grounds (Internal quotation on the narrowest . . . .” marks omit States, ted.) 188, 193, Marks v. United 430 U.S. 97 S. Ct. 51 L. Ed. 2d (1977). Ford, ground In Justice Powell concurred on the that the federal required apply presumption habeas statute federal courts to of correct courts, findings governor. ness to the factual of state not the Ford Wain wright, supra, (Powell, J., concurring). Powell also concluded that a constitutionally acceptable procedure determining sanity of a defen “may dant who has been sentenced to death far be less formal than a trial. provide impartial The State should officer or board that can receive argument prisoner’s counsel, expert including evidence and from the evi may psychiatric Beyond dence that differ from the State’s own examination. requirements, leeway these basic the States should have substantial to deter process Id., mine what best balances the various interests at stake.” (Powell, J., concurring). Nothing language suggests competency in this hearing provided any meaningful must be in the absence of evidence that incompetent. the defendant is The Court Supreme for hearing. for the defendant the Rosenz- prior counsel, Jeff that the defendant’s noted but that insane, that was weig, contended not to make the decision “was entitled Rosenzweig quotation competent.” (Internal client is whether his a motion Id. then filed omitted.) Rosenzweig marks appointed to advo- to be Supreme asking with the Court incompetent. that the defendant was position cate the The motion was denied. Id. appointed E. “Doc” Irwin to court Robert

The trial and competency hearing represent the defendant at the position to take that the defendant ordered Irwin the permitted Id. Irwin was not competent. Thus, was or to present incompetence cross-examine evidence the witnesses. 566. The trial court determined Id., state’s his competent right that defendant was waive appeal and, accordingly, Supreme Court dismissed as appeal. acting his Id. the defendant’s Rosenzweig, filed for a counsel, petition friend and then next District corpus writ habeas in the United States found competency That court held a Court. incompetent. Rosenzweig that defendant Id. was Supreme then Court to reconsider asked Arkansas appeal. Supreme its of the defendant’s dismissal to do and the defendant reinstituted so, Court refused his for court. Id. petition corpus habeas federal writ state granted The District Court and the appealed. appeal On United Circuit Id. to the States Appeals Circuit, argued the state Eighth Court of procedurally defaulted that the defendant’s claims were they rejected because had been considered appeal and the had withdrawn his state court Id. the state ruling. argued from that The defendant competent was to waive his finding court’s appeal presumption was not entitled to a of correctness Id., 567. competency hearing because the flawed.14 permitted O’Rourke, In the court stated stated: District Court “[T]he reopen Endell, petition his court.” federal O’Rourke [the defendant] of Appeals Court that the United recognized Supreme yet

States Court “has compe- to hold that a tency hearing must be adversarial in nature in order to prisoner be full and fair and to afford a process the Nevertheless, is due.” Id. it concluded that “without the appointment of a position ‘next friend’ to advocate the prisoner incompetent, competency the is hearing such the one at issue here is not full and nor fair, does comport it process.” note, with due Id. We however, that the ultimately court’s decision did not rest absence of a fair hearing. Instead, the court concluded that the defendant had not met the second prong test for overcoming procedural default, namely, that prejudiced by he was the ineffectiveness of his counsel. Wainwright, Id., 570. We further note as in that, O’Rourke court in question addressing of what procedures required competency were at a hearing after the trial court had concluded that a sufficient showing of incompetence require has been made to an adversar- ial in the first hearing instance. The court did not address the question of what threshold showing is required. possible It is that, the absence of claim to the contrary, Appeals the Court of simply assumed that the requisite had been showing made before the competency first that O’Rourke To the extent hearing. may be read as suggesting that the trial court must competency order a appoint a next friend to argue position that the incompetent when no showing threshold has been made, we dis- supra, opinion argues 153 F.3d 566. The also states: “[The defendant] competency hearing finding was flawed and therefore the that he had capacity postconviction appeal presump- to waive his is not entitled a Id., opinion carefully distinguishes tion of correctness.” 567. The O’Rourke personally between actions taken and those taken Rosenzweig appears, therefore, without the defendant’s consent. It that the proceedings defendant consented to the reinstitution of the federal habeas arguments by Rosenzweig support and the made thereof. may court in its discretion the trial agree.15 Although a mere of competency allegation a when hearing hold v. made,16 under Demosthenes incompetence has been hearing in such a Baal, supra, 737, participation 495 U.S. is not constitu- by person the next friend status seeking presented mean- tionally required person if that has not incompetence. logical The extension evidence of ingful contrary to the is plaintiff argument in error’s require incompetence must the case for that the court where there is no evidence to be made even in cases words, require of in other it must a fraud incompetence; 15 case, that, present We also note unlike in the the trial court O’Rourke position the that the defendant was ordered the defendant’s counsel to take competent competency hearing. plaintiff argued not at the error vigorously argument at oral before this court that the fact that a defendant represented by challenges who has waived further to his death sentence is qualified who, independent judgment, counsel in the exercise of his believes competent that the defendant is should not affect the trial court’s decision person appear on to allow as the whether another defendant’s next friend. persuaded. competency We are not If there is reason to doubt the of a defendant, then, represented counsel, in cases where the defendant is not validity competent is, itself, claim that is of defendant’s under a doubt, appearance competent person, cloud of and the of a third who has showing incompetent, made a that the defendant is to act as a next friend justified. represented by qualified is therefore When the defendant is counsel obligations interests, who has ethical to act in his client’s best there is far justification Indeed, appearance less for of a next friend. to allow such appearance troubling questions would raise about the defendant’s consti rights tutional to counsel of his choice and to control his own fate. Accord entirely requires ingly, we are not that the constitution ever convinced appointment argue incompetence of a next friend to when the defendant represented by independent, qualified is counsel. Because we conclude in present case, however, plaintiff that the in error has not met the burden producing meaningful incompetence, evidence of the defendant’s we need person seeking higher not friend a consider whether a next status has burden represented reject, however, when the defendant is counsel. We argument in error’s that it should have a lower burden. require competency Although hearing whenever a defen some states proceedings; Arkansas, supra, forgo dant wants to further see Whitmore v. 165; Supreme 495 U.S. the United States Court has never held that such a healing constitutionally required. See id. Because the trial court in the present competency granted request hearing, case the state’s we need constitutionally required. hearing not consider whether the such a require constitution cannot the court. The

bizarre result.17 partici its claim that it was entitled support

In error competency hearing, pate holding of Connecticut cases also relies on a number necessary to the determina of fact are that, when issues a trial-like process requires that tion of due standing, pro must be opportunity at which an held, be wit evidence and to cross-examine present vided to Corp. Dept. Labor, Unisys See, e.g., nesses. We are not 695-96, (1991). 600 A.2d 1019 689, Conn. standing claims person In cases where a persuaded. party standing that the has no party, a determination out of court. It entire matter is thrown means that the the courts without that access to denying is clear whether evidentiary to determine hearing of an benefit process. provided is a denial of due access should be in error is however, plaintiff present case, In the extraordinary step of the court to take the asking already in a that is before appear it to matter allowing party represented who is as the next friend of a the court cir that, We believe under these by qualified counsel. process plaintiff of both the cumstances, rights the due by adequately protected are in error and the defendant in an plaintiff error participation allowing plaintiff persuaded in error not the other cases cited We also are incompetence position proposition at someone must take the of for the that 1248,1250-52 2000) Stewart, (9th hearing. v. Cir. See Miller 231 F.3d a Rees evidentiary request hearing when no such (granting Rees next friend’s presented previously hearing friend evidence of had been held and next Hays Murphy, (10th 1981) incompetence); Cir. 663 F.2d 1008-1009 testimony, evidentiary hearing (although sides introduced at which both adequate procedure documentary arguments was for determin evidence and compe competency defendant, underlying investigation ing defendant’s of State, (Fla. 2001) tency adequate); Slawson v. 796 So. 2d was not subjected “properly presented competency hearing (evidence at only evidentiary hearing”). testing in These cases establish adversarial incompetence require that, showing after a of evidence of sufficient required. made, competency hearing has been an adversarial is only upon a standing to establish evidentiary hearing is evidence that meaningful showing incompetent. that it in its brief argue did not plaintiff in error that the defendant evidence presented meaningful

had before argument at oral and conceded incompetent such evidence presented not it had this court it to do so ordered court had never because the trial present such required be that it would and it believed Upon careful itself. competency hearing at the evidence plaintiff record, we believe that review of the present evidence opportunities to error had numerous do so. In light claim and failed to support of its properly that the trial court failure, we conclude in error was not entitled that the determined compe- as a next friend in the defendant’s participate tency hearing. despite indicated, however, we have

As evidence of the meaningful in error’s failure to offer pro- we incompetence timely manner, in a defendant’s a written offer of opportunity present with an vided it evidence. We conclude proof detailing to this court such in error by submitted proof that the offer of of the defen- evidence meaningful did not constitute proposed evidence incompetence. Much of the dant’s by him and was addressed provided had been to Norko testimony. Norko report recognized in his and history a of sui- depressive symptoms, had anxiety and emo- and moments of intense attempts cide appeared the defendant tion. He also was aware that had doubts that occasionally emotionally drained, to be to the victims’ bring his actions would comfort his occasionally ambivalent about families and was nor- feelings that these were decision. Norko concluded did position in the defendant’s and person mal for a rational incapable making he was not mean that the defendant addition, In Norko was aware that choice. prefer imprisonment death, would a sentence of life penalty phase want a new With hearing. but did not proposed testimony proposed and the respect to Nave’s testimony father that the suggesting of the defendant’s importance and defendant suffered from delusions narcissism, Norko that the defen- recognized extreme personality disorder with narcissis- dant suffered from did not affect tic traits but concluded that the disorder ability respect his to make a rational decision. With claims that the defendant did not public defenders’ extensively the trial court legal options, understand his reasonably on that and canvassed the defendant issue found otherwise. testimony proposed

We also conclude that Grassian’s confinement on the defen- segregated on the effect of voluntary ability to make a rational and choice dant’s speculative. Grassian has neither examined the defen- the conditions of the defendant’s inspected dant nor report confinement. Norko stated in his that the defen- frequent prison, corresponds dant has visitors in with reads, listens to people regularly prays, numerous puzzles watches television and does and word music, that, although Norko also found games. occasionally symptoms from some of the listed suffered slept appe- had a normal Grassian, generally well, able to concentrate energy level, tite and a good memory process thought, and to had no disturbances expressed Moreover, no suicidal Grassi- thoughts. testimony proposed recog- an’s that Norko had failed to would allow him intelligence nize the defendant’s supported to conceal a “hidden is not agenda” specifically report in his that the record. Norko stated [prison’s defendant “has hidden from the mental things past . . . .” He further stated that staff the health] Chaplin surface, “has tried to look but does through any reasons, not see concerns.” For similar significant proposed testimony we that Goldsmith’s conclude voluntary speculative not is defendant’s decision is we conclude by Finally, the record. supported and not testimony by many of the proposed that much of conclusory suggests in that it witnesses is by his fate forgo- decision to take control of defendant’s sentences and further to his death ing legal challenges consequences of that his ambivalent over the feelings evidence of his are, themselves, decision in and of proposition in incompetence. We see no basis for that experience or the law. logic, pre- has not plaintiff

We conclude that the error is sented evidence that meaningful incompetent within the of Demosthenes meaning In of such Baal, supra, 495 U.S. 734-35. the absence to an evi- evidence, plaintiff in error is not entitled dentiary may attempt to establish the hearing at which it incompetence appear defendant’s and its standing the defendant’s next friend under Whitmore v. Arkan- sas, supra, 495 we with Accordingly, agree U.S. 161-66. the trial court that in error’s motion to appear as the defendant’s next friend should be denied.

Ill We next address the in error’s claim that the its motion denying trial court abused its discretion appear disagree. as an amicus curiae. We [a]ppearance “The of an amicus curiae is generally application of an for the grant authorized the court’s privilege appearing as amicus curiae and not as of an right. Accordingly, fact, extent and manner of entirely within the participation amicus curiae’s may ordinarily court’s curiae discretion and amicus only by quotation be heard leave of the court.” (Internal Greenwich, 628, marks Thalheim v. 256 Conn. omitted.) Organiza- 775 A.2d 947 see also National (2001); Women, Scheidler, (7th tion Inc. v. 223 F.3d for 2000) (“[w]hether permit nonparty Cir. to submit a exceptions, curiae, is, amicus with immaterial brief, as Michigan, United States v. judicial grace”); a matter of participa- 1991) (“[classical Cir. (6th 940 F.2d and as a friend of the argue tion as an amicus to brief be, a within ‘the was, privilege court and continues we Accordingly, the courts’ ”). sound discretion of application appear denial of an review the trial court’s of discretion. amicus curiae for abuse who curiae was defined as one “Historically, amicus judicial to assist the court interposes proceeding in a otherwise, or who by information, or giving conduces] or request other investigation proceeding or purpose ... Its therefor the corut. appointment provide impartial information on matters of was to doubt, especially there was matters law about which . . . The orthodox view of amicus public interest. impartial of an friend of the was, is, curiae party litiga- in interest in the adversary court—not an tion. . . . The of classical amicus in position litigation account of the provide highly partisan was not to the court in doubtful facts, resolving but rather to aid omitted; emphasis original; law.” (Citations issues of United States quotation omitted.) marks internal . . . has Michigan, supra, 940 F.2d 164-65. “Amicus accorded the full to, never been elevated or recognized, party party a named or a real status of litigating consistently pre- . . . and amicus has been interest plead- initiating legal proceedings, filing cluded from control participating assuming or otherwise ings, . . . controversy totally in a adversarial fashion. joined join an amicus could not issues not Historically, . . . .” (Citations omitted.) in interest parties Id., 165. authority single in error has not cited a required

directly its that a court is supporting argument if the request appear as amicus curiae grant posi- parties to a have taken nonadversarial proceeding to be person seeking on which tions on an issue view.18 an opposing amicus curiae takes admitted as an the court make it clear principles foregoing clear that so. It is also to do obligation has no for procedure to use the attempting in error is plaintiff evading as a vehicle for amicus curiae becoming an formally underlying intervening for procedures granted should not be cases. Amicus status criminal we Accordingly, 165-66. id., See purpose. for such a its discretion did not abuse that the trial court conclude request appear to as in error’s plaintiff in denying an amicus curiae. plaintiff in denying court

The orders of the trial friend the defendant’s next appear as error’s motion curiae are affirmed appear as amicus request and its writ of error is dismissed. and the VERTEFEUILLE, ZARELLA, LAVERY opinion In this FOTI, Js., concurred. my Despite long-standing NORCOTT, J., concurring. place no whatsoever penalty death has belief that the 1 I justice system, in and rational criminal a civilized 18 may only error hold that a court cited in Tlie cases position appoint has that a defendant who an amicus curiae to take the incompetent challenges do so. his death sentence is waived further Budge, 880, Cir.) (Berzon, J., (9th rel. Butko v. 903 See Dennis ex 378 F.3d 959, 16, denied, concurring), 125 S. Ct. 159 L. Ed. 2d 847 cert. 542 U.S. Vasquez, 1220,1221 (9th Cir.), (2004), citing Mason ex rel. Marson v. 5 F.3d Stewart, Sup. 'd, (en banc); Comer (9th 1993) v. 230 F. Cir. aff 1 F.3d 964 Dodd, 10, 1, 1016, (D. 2002); State v. 120 Wash. 838 P.2d 86 2d 1019 Ariz. authority support eighth argument (1992). its cites no It reliability penalty heightened requirement cases death amendment requires appointment amicus curiae in such cases. of an 1 (Katz, J., Peeler, 464, 338, (2004) 857 A.2d 808 See State v. 271 Conn. Ross, Norcott, J., joins, dissenting); 213, State v. Conn. 269 with whom (Norcott, J., dissenting); Breton, State v. 392-93, (2004) 264 849 A.2d 648 J., dissenting), denied, (Norcott, 327, 446-49, 540 778 cert. Conn. 824 A.2d Webb, (2003); State v. 1055, 819, 252 Conn. 124 S. Ct. 157 L. Ed. 2d 708 U.S. J., dissenting), (Norcott, denied, 835, 128, 147, cert. 531 U.S. 750 A.2d 448 Griffin, 671, 742-48, State 93,148 (2000); v. L. Ed. 2d 53 251 Conn. 121 S. Ct. J., Ross, (1999) (Norcott, State v. dissenting); 251 Conn. A.2d 913 741 majority with the and conclusion of the

agree reasoning of this opinion particular case, as limited to the context namely, respect the issue of with to the standing error, public the office of the chief defender of the defendant, next friend of the Connecticut, state of separately Michael B. Ross. I write because our order inexorably, days will but lead in a matter of indirectly, the death of the defendant at the hands of the state. This still unre legitimate claims, troubles me because deathpenalty system in a solved, that our is administered arbitrary racially discriminatory, capricious or manner. n.4, 234 Conn. 738 and 663 A.2d Cobb, See State preliminary Indeed, a com (1995) (discussing data). prehensive study statistical about the influence of race application other factors in the of Connecticut’s and penalty presently death is in the context of ongoing corpus consolidated habeas that litigation being by supervised special master, a former Chief Justice Reynolds, 1, Robert Callahan. See State v. 264 Conn. 597, Cobb, (1999) (Norcott, J., dissenting); v. 742 A.2d 312 State 251 Conn. 285, 543-52, J., denied, (1999) (Norcott, dissenting), A.2d 1 cert. 531 743 106, Webb, 841, (2000); L. Ed. v. U.S. 121 S. Ct. 148 2d 64 State 238 Conn. 389, 566-70, (1996) (Norcott, J., dissenting); 680 A.2d 147 see also State v. Rizzo, 313-14, J., 171, (2003) (Norcott, concurring); 266 Conn. 833 A.2d 363 Courchesne, 537, 583-84, (2003) (Norcott, State v. 262 Conn. 816 A.2d 562 J., concurring). previously “pervasive 2 I and of have noted the insidious influence race poverty penalty.” Breton, and in the administration of the death State v. 264 327, 447, (Norcott, J., dissenting), denied, Conn. 824 A.2d 778 cert. 540 U.S. 1055,124 819,157 Cobb, (2003); S. Ct. L.Ed. 2d see v. Conn. 708 also State 251 545-46, 285, (1999) (Norcott, J., dissenting) (“I 743A.2d 1 am convinced that the arbitrariness inherent in the sentencer’s discretion is intensified suggest issue of race. Indications from the available that the death evidence penalty racially discriminatory imposed in a has been manner and has been geared denied, 841, poor.”), toward minorities and the cert. U.S. 121 S. 531 106, Webb, (2000); 389, 566-67, L. v. Ct. 148 Ed. 2d 64 State 238 Conn. 680 (1996) (Norcott, J., (“I persuaded statutory dissenting) A.2d 147 am that our imposition scrutiny for cannot withstand scheme its constitutional because very scheme, nature, unacceptable opportunity its admits of an operate arbitrariness and the influence of racial discrimination to state”). determination of who shall die at the hands of the 908, 541 U.S. 232-33, denied, 836 A.2d 224 cert. (2003), also General L. Ed. 2d 254 see 1614,158 (2004); 124 S. Ct. Court shall Supreme (b) (1) (“[t]he Statutes 53a-46b § it of death unless determines affirm the sentence passion, preju of product . . . sentence was the [t]he My concern is that arbitrary factor”).3 or other dice n.4, Cobb, supra, which was decided in In 234 Conn. 738-39 State 1995, produced preliminary contended that race has data and “(1) impermissible capital sentencing since effect on because: felony pursuant prosecutors charged capital to General Statutes have a seventy-four cases, only eleven, percent, which or 15 have § 53a-54b in percent black, though a victim who was even involved the murder of black; during period (2) were all victims in the state that same time murder prosecutions 1973,although eighteen capital for mur since there have been prosecuted during kidnapping, where der committed the course of none was black; (3) during period, there have been twelve the victim was the same assault, capital prosecutions in the course of a sexual for murder committed twenty- only victim; (4) murder of a black since one involved the felony, by eight capital or cases have resulted in a conviction of verdict proceeded plea, eighteen twenty-eight, have to a of those felony imposition penalty. twenty-eight capital of the death Ofthe convic tions, only four, percent, or 14 have involved the murder of victim who penalty phase black, eighteen gone hearing, and of the that have only victim; one, percent, (5) of a black or 5.5 has involved the murder sixty-six capital phase concluded, guilt in which 1he has been convictions twenty-one forty-five involved black defendants and involved nonblack twenty-one, percent, defendants, or 62 defendants. Of the black thirteen of capital forty-five, percent, were convicted felonies and fifteen of or 33 of sought opportunity nonwhite defendants were so convicted.” He “the kidnap demonstrate the number of murders of black victims and the number prosecuted as of sexual assault murders of black victims that were not capital disproportionate felonies and to demonstrate the treatment of those compared comparable involving crimes as to the treatment of crimes white victims.” Id. adequate Because of the need for the creation of an factual record as to alleged discrimination, this court concluded that the defendant’s claim in appropriately collaterally corpus proceed Cobbwas more raised via a habeas ing, appeal. Id., and rather than a remand from direct 741. Data collection analysis by public shortly thereafter, the and in State defenders commenced Reynolds, supra, 264 Conn. this court ordered that the Cobb and Reynolds litigated racial discrimination claims “be before the same habeas judge general, hearing, and in the same consolidated on behalf of all defen December, 2002, dants who have been sentenced to death.” In Chief Justice special appointed WilliamJ. as Sullivan former ChiefJustice Robert Callahan the benefit proceed without an execution permit study thereon ruling and completion the of of judicial imprima premature an informal and amounts to penalty process. More fairness of the death tur on the subsequently conclude the habeas court over, should fundamentally system is penalty death that our entire race the discriminatory on the basis of flawed after our citizens’ confidence executed, has been as a judicial rest of the branch in court and the this 4My irreparable harm. suffer rights might bastion of civil concur in the instant aside, I nevertheless reservations in this issue was not addressed because this judgment writ of error. majority I with the

DRANGINIS, J., concurring. agree public of the chief error, in the office that the participate cannot Connecticut, of the state of defender Ross, B. or defendant, Michael as next friend of the postconviction proceedings as amicus curiae fully however, I also agree, the defendant. against cases consolidated pending Norcott with Justice race the influence of corpus regarding litigation habeas raises penalty death statute application of our imposition imminent of the death that the prospect will in the foreseeable revealed, in this case be penalty preparation litigation, including manage and submission master response. of the state’s Id. present consequence case and his that the defendant It is of no question guilt, white, or that his that there is no as to his victims are voluntary. competent, knowing acquiescence penalty is to the death My trepidation our concerns in this case because transcends penalty administration of Connecticut’s death of racial discrimination in the conjecture consumption product voracious informed are not the analysis Rather, supervised statistical of our of law review articles. a court progress. scheme, disposition, capital sentencing is in actual from intake to disparity allegations preliminary racial data has revealed statistical require years analysis supervision enough under the that are substantial using profound implications knowingly special master. I find of a seriously plausibly may penalty process well be flawed as a death discriminatory on the basis of race. fundamentally flawed resulted from a future, having separately only because, I unlike Justice system. concur penalty I the death to be uncon- Norcott, do not believe in all situations. stitutional LOCAL 704 v. DEPARTMENT

AFSCME, COUNCIL PUBLIC HEALTH OF

(SC 17120) Zarella, Borden, Norcott, Katz, Js. Verlefeuille

Case Details

Case Name: State v. Ross

Court Name: Supreme Court of Connecticut

Date Published: Jan 14, 2005

Citation: 863 A.2d 654

Docket Number: SC 17335

Court Abbreviation: Conn.