State v. Ross

273 Conn. 684

873 A.2d 131

STATE OF CONNECTICUT v. MICHAEL ROSS.

(SC 17422), (SC 17423).

Supreme Court of Connecticut.

Argued May 5, 2005.

Official released May 9, 2005.^*

Sullivan, C. J., and Norcott, Vertefeuille, Zarella, Lavery, Dranginis and Flynn, Js.

Michael P. Shea, with whom were Thomas J. Groark, Jr., and James Mahanna, for the plaintiff in error-appellant (special counsel).

Harry Weller, supervisory assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, Susan C. Marks, supervisory assistant state's attorney, Marjorie Allen Dauster, senior assistant state's attorney, Robert J. Scheinblum, assistant state's attorney, and Jessica Probolus, special deputy assistant state's attorney, for the defendant in error-appellee (state).

Opinion

SULLIVAN, C. J.

This appeal¹ is brought by Thomas J. Groark, Jr., in his capacity as special counsel appointed by the trial court to investigate, prepare and present legal arguments that the defendant, Michael Ross, is incompetent to waive further postconviction challenges to his sentences of death. After a hearing, the trial court found that the defendant was competent and his waiver was knowing, intelligent and voluntary. Special counsel challenges that finding on appeal. We affirm the judgment of the trial court.

The record reveals the following procedural history. More than twenty years ago, the defendant "was charged in three cases with eight counts of capital felony in violation of General Statutes § 53a-54b. The trial court dismissed two counts for lack of territorial jurisdiction and, after a jury trial, the defendant was convicted of four counts of capital felony in violation of § 53a-54b (5) and two counts of capital felony in violation of § 53a-54b (6).² State v. Ross, 230 Conn. 183, 188, 194-95, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) . . . . After a separate penalty phase hearing pursuant to General Statutes (Rev. to 1987) § 53a-46a, he was sentenced to death. The defendant appealed from the judgments to this court. We affirmed the defendant's convictions, but determined that certain evidentiary rulings by the trial court in the penalty phase had impaired the defendant's ability to establish a mitigating factor and, accordingly, we reversed the judgments imposing the death penalty. [Id.], 286. On remand, a second penalty phase hearing was held before a jury, which found an aggravating factor for each capital felony conviction and no mitigating factor. In accordance with the jury's findings, the court, Miano, J., imposed a death sentence on each count. State v. Ross, 269 Conn. 213, 223-24, 849 A.2d 648 (2004). The defendant again appealed from the judgments to this court, and we affirmed the sentences of death." (Internal quotation marks omitted.) State v. Ross, 272 Conn. 577, 579-80, 863 A.2d 654 (2005).

"Thereafter, on September 21, 2004, T. R. Paulding, Jr., an attorney, entered appearances in the three criminal cases against the defendant. His appearances were in lieu of the appearances by attorneys employed by the public defender's office. At the same time, Paulding sent a letter to the trial court, Clifford, J., indicating that the defendant intended to waive any further appeals or collateral attacks on his death sentences and that he wanted the court to set an execution date." Id., 580.

The trial court held a hearing at which it canvassed the defendant about his decision to waive further challenges to the death sentences. The court indicated that it saw no evidence that the defendant was not competent and set January 26, 2005, as the execution date. Id., 581.

Despite the fact that Paulding had appeared for the defendant in lieu of the public defenders, "[o]n December 1, 2004, the [public defender's office] filed a motion to proceed in forma pauperis and a petition for writ of certiorari in the United States Supreme Court. The [public defender's office] represented in the filings that the defendant had refused to sign an affidavit of indigence in support of the motion because he was incompetent. The United States Supreme Court denied the motion on January 10, 2005. [See Ross v. Connecticut, 543 U.S. , 125 S. Ct. 943, 160 L. Ed. 2d 766 (2005).]

"Also on December 1, 2004, the [public defender's office] filed in the Superior Court a motion for permission to appear as (1) next friend of [the defendant]; and (2) as a party in interest or as an intervener or as amicus curiae. The [public defender's office] alleged in its motion that it had standing to appear as the defendant's next friend because the defendant was incompetent when he terminated the [public defenders'] representation of him; because [the defendant] is presently incompetent; and because the [public defender's office] has had a significant relationship with [the defendant] for some seventeen years . . . . In addition to the motion for permission to appear, the [public defender's office] lodged with the court clerk a motion for stay of the defendant's execution pending a judicial determination as to whether the defendant is competent and a motion for stay of execution pending resolution of the pending consolidated litigation ordered by this court to determine whether Connecticut's death penalty system is racially discriminatory and therefore violates the state constitution and statutory law (consolidated litigation).

"Thereafter, the state filed a motion seeking a determination as to whether the defendant was competent to waive his rights to seek postconviction relief and whether his waiver was knowingly and voluntarily made. The court held a competency hearing on December 9, 2004. Because the trial court had not yet ruled on the [public defenders'] motion to appear, the [public defender's office] attended the hearing only as an observer." (Internal quotation marks omitted.) State v. Ross, supra, 272 Conn. 581-83.

At the December 9, 2004 hearing, the court heard testimony from Paulding and the defendant. At the conclusion of the hearing, the court stated that, "although it would appear to a layperson that the defendant was competent under any standard that would apply, the court required additional information as to whether the defendant had any mental disorder, disease or defect that might affect his decision. Accordingly, the court ordered that the defendant undergo a competency examination by Michael Norko, a psychiatrist, and scheduled a competency hearing for December 28, 2004. The court also scheduled a hearing on the [public defenders'] motion to appear on behalf of the defendant for December 15, 2004." (Internal quotation marks omitted.) Id., 587. After hearing arguments by the parties and the public defender's office at the December 15, 2004 hearing, the court denied the motion to appear. Id., 588.

"Thereafter, on December 23, 2004, the [public defender's office] filed one motion in this court for review of the trial court's denial of its motion for a stay of the competency hearing and for stay of execution, and a second motion for emergency stay of the competency hearing and of execution. The [public defender's office] indicated in the motions that it intended to file a writ of error challenging the trial court's rulings on [its] standing on December 27, 2004. This court dismissed both motions. On December 28, 2004, the [public defender's office] brought [a] writ of error claiming that the trial court improperly had (1) refused to allow the [public defender's office] to present evidence and to cross-examine witnesses at the December 28, 2004 hearing and (2) denied the [public defender's office's] request to appear as an amicus curiae." Id.

At the December 28, 2004 competency hearing, the trial court heard testimony from Norko and the defendant and found that the defendant was competent under the standard set forth in Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966) (defendant is competent to waive further challenges to death sentence when "he has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation"). See State v. Ross, supra, 272 Conn. 591.

"Thereafter, at oral argument before this court on [its] writ of error, the [public defender's office] represented that it had evidence of the defendant's incompetence that had never been presented to any court. In light of this representation, and despite the . . . failure [of the public defender's office] to make an offer of proof to the trial court, this court issued an order authorizing the [public defender's office] to file with this court a written offer of proof detailing the evidence that it would present at a competency hearing. The [public defender's office] filed an offer of proof, attaching summaries of the proposed testimony of Stuart Grassian, a psychiatrist; Eric Goldsmith, a psychiatrist; five attorneys with the public defender's office, namely, Barry Butler, [Karen] Goodrow, Paula Montonye, Lauren Weisfeld and John Holdridge; Robert Nave, the state death penalty abolition coordinator for the Connecticut branch of Amnesty International and executive director of the Connecticut Network to Abolish the Death Penalty; and Dan Ross, the defendant's father. The offer of proof also attached several documents that the [public defender's office] proposed to introduce as exhibits."³ Id., 592.

Upon review of the evidence presented at the December 28, 2004 hearing and the offer of proof filed by the public defender's office, this court concluded that the public defender's office had failed to present "meaningful evidence" that the defendant was incompetent and, therefore, under the rule set forth in Demosthenes v. Baal, 495 U.S. 731, 736, 110 S. Ct. 2223, 109 L. Ed. 2d 762 (1990), the public defender's office was not entitled to participate in an evidentiary hearing at which it could attempt to establish the defendant's incompetence and...