author: LANDAU, J.

text:
    DANIEL PANTANELLA v. ENFIELD FORD, INC., ET AL.
    (AC 20453)
    Landau, Dranginis and Shea, Js.
    Argued March 26
    officially released August 14, 2001

      David A. Kelly, for the appellant (defendant Connecticut Insurance Guaranty Association).

      Jeffrey D. Cedarfield, with whom, on the brief, was Patrick Tomasiewicz, for the appellee (plaintiff).

      Colette S. Griffin, for the appellees (named defendant et al.).

      Timothy G. Zych, for the appellee (defendant St. Paul Fire and Marine Insurance Company).
   Opinion

LANDAU, J.

The defendant Connecticut Insurance Guaranty Association (CIGA) appeals from the decision of the workers’ compensation review board (board) affirming the finding and award of compensation and attorney’s fees by the workers’ compensation commissioner (commissioner) to the plaintiff, Daniel Pantanella. On appeal, CIGA claims that the commissioner improperly (1) concluded that the plaintiff is entitled to attorney’s fees, (2) concluded that CIGA waived any statute of limitation defense, (3) failed to grant its motion to correct and (4) abused his discretion by failing to grant its motion to open the record to admit additional evidence. We affirm the decision of the board.

In his finding and award, dated July 3, 1996, the commissioner found the following facts. The plaintiff was a longtime employee of the defendant Enfield Ford, Inc. (Enfield Ford), which, at the relevant times, had workers’ compensation liability insurance coverage through either St. Paul Fire and Marine Insurance Company (St. Paul), American Mutual Insurance Company (American) or TIG Insurance Company (TIG). The plaintiff, during the course of his employment, suffered a series of four back injuries. The first occurred on February 15, 1977, the second occurred on March 3, 1986, the third occurred on August 7, 1992, and the fourth occurred on February 22, 1994. St. Paul provided Enfield Ford’s workers’ compensation liability insurance coverage at the time of the first injury, American provided the coverage at the time of the second injury, and TIG provided the coverage at the time of the third and fourth injuries. Sometime after the second injury, American became insolvent and CIGA appeared on its behalf.

The plaintiff was treated by a number of physicians and eventually requested that physician James T. Mazzara render an opinion concerning the permanency of his injuries and assign a percentage of the permanency to each of the four back injuries for his workers’ compensation action. In a report dated July 27, 1994, Mazzara opined that the plaintiff had a 12 percent permanent partial disability to his lumbar spine. Mazzara attributed 40 percent of the disability to the first injury, 40 percent to the second injury and 20 percent to the third injury. The opinions in Mazzara’s report were well founded, reasonable and persuasive.

Accordingly, St. Paul and TIG entered into agreements with the plaintiff to pay their respective shares of the permanency for the first and third injuries in accordance with Mazzara’s report. CIGA refused to pay its share of the permanency for the second injury, which resulted in undue delay of payment of the benefits due to the plaintiff.

Formal hearings were held on July 20,1995, and September 28, 1995, after which the record as to evidence was closed. At a formal hearing on May 2, 1996, CIGA attempted to introduce the transcript of a deposition of Mazzara, which was taken after the close of evidence. The commissioner noted the plaintiffs objections and excluded the proffered deposition transcript.

As a result of his findings, the commissioner concluded that each workers’ compensation liability carrier was liable for its share of the permanency found by Mazzara. In addition, the commissioner ordered CIGA to pay (1) 12 percent interest on its share of the permanency from the date of Mazzara’s report to the date of payment and (2) $3500 in attorney’s fees. On March 21, 1997, CIGA filed a motion to open, seeking, inter alia, to introduce the transcript of Mazzara’s deposition. The plaintiff objected, and the commissioner sustained the objection without holding a healing.

CIGA appealed to the board from the commissioner’s finding and award (Pantanella I). On appeal to the board, CIGA claimed that the commissioner (1) lacked jurisdiction to hear the underlying claim, (2) improperly failed to conclude that the claim was not a covered claim, (3) improperly failed to conclude that notice of the claim was not given in a timely manner, (4) abused his discretion in making evidentiary rulings, including failing to conduct a hearing with respect to the motion to open and (5) improperly awarded attorney’s fees for CIGA’s undue delay in paying the plaintiff compensation. In its revised opinion, dated January 28, 1998, the board concluded that it could not review CIGA’s notice claim because the commissioner did not make a finding of fact as to when CIGA received notice of the claim against it. Similarly, the board concluded that it could not review CIGA’s claim that attorney’s fees were improperly awarded because the commissioner did not make a finding of fact regarding whether the delay in the payment of compensation to the plaintiff was due to the fault or neglect of CIGA. The board also concluded that the commissioner had improperly denied CIGA’s motion to open without holding a hearing. The board remanded the case for the commissioner to make findings of fact for the claims as to notice and attorney’s fees, and for a hearing on CIGA’s motion to open. The board affirmed the commissioner’s decision with respect to the other claims.

On remand, the commissioner conducted a hearing on the motion to open. The commissioner concluded that the motion to open contained no new information regarding CIGA’s request to introduce the excluded evidence and, therefore, he denied the motion. Pursuant to the board’s order, the commissioner made the following findings of fact: (1) CIGA waived any notice claim, and (2) the undue delay in payment of benefits to the plaintiff was caused by the fault of CIGA. In a motion to correct dated November 24, 1998, CIGA claimed that the commissioner failed to follow the board’s order for him to make a finding with respect to the date that notice was sent to CIGA. In his response dated December 14, 1998, the commissioner reasserted that CIGA had waived any notice claim, and he denied the motion to correct.

On November 25, 1998, CIGA again appealed to the board, claiming that the commissioner improperly (1) denied its motion to correct the record and add a finding regarding the date notice of the plaintiffs claims was sent to CIGA, (2) failed to find the date that notice of the plaintiffs claim was sent to CIGA, (3) failed to conclude that the plaintiffs claim was barred because notice of it was not timely filed, (4) failed to conclude that the plaintiffs claim was not covered under the Workers’ Compensation Act, General Statutes § 31-275 et seq., (5) denied CIGA’s motion to open the record to introduce the transcript of the deposition of Mazzara, (6) failed to conclude that CIGA was not liable for the claim because the plaintiff did not exhaust his rights under other insurance policies, and (7) failed to conclude that the plaintiffs claim for interest and attorney’s fees was not warranted because CIGA had a good faith basis for contesting the plaintiffs claims.

In a motion dated January 8, 1999, the plaintiff requested additional attorney’s fees on the ground that CIGA’s attempt to revive its notice claim was another example of CIGA’s “stonewalling and foot-dragging” as prohibited by General Statutes § 31-300. The commissioner granted the plaintiffs motion and ordered CIGA to pay attorney’s fees in the amount of $800. On January 11, 1999, CIGA made another attempt to introduce the transcript of the deposition of Mazzara by filing a motion to submit additional evidence. The commissioner denied CIGA’s motion.

In its decision concerning CIGA’s appeal (Pantanella II), the board concluded that in its discretion, as discussed in Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293-94, 734 A.2d 1036 (1999), it need not address CIGA’s claims that the commissioner improperly failed to conclude (1) that the plaintiffs claim was not covered under the Workers’ Compensation Act and (2) that CIGA was not hable because the plaintiff did not exhaust his rights under other insurance policies, as those claims had been addressed in Pantanella I. The board then affirmed the commissioner’s ruling with respect to CIGA’s other claims by concluding that (1) CIGA affirmatively waived its claims regarding notice and (2) the commissioner did not abuse his discretion by denying CIGA’s motion to open or by awarding attorney’s fees. This appeal followed.

Before addressing the merits of CIGA’s claims, we first set forth our standard of review for workers’ compensation appeals. “The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. . . . On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. . . . Our scope of review of [the] actions of the [board] is [similarly] . . . limited. . . . [However,] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Citations omitted; internal quotation marks omitted.) Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 739, 774 A.2d 1009 (2001).

I

CIGA first claims that the board improperly affirmed the commissioner’s award of attorney’s fees. We disagree.

The commissioner found that on September 28,1995, he had ordered that no further evidence would be admitted. CIGA ignored the commissioner’s order by attempting, on a number of occasions, to introduce the transcript of the deposition of Mazzara. The commissioner also found that the litigation that resulted from CIGA’s attempts to introduce the deposition caused undue delay in the payment of benefits to the plaintiff. On the basis of his findings, the commissioner awarded attorney’s fees.

Applying § 31-300 to the facts as found by the commissioner, we conclude that the board properly affirmed the award of attorney’s fees.

II

CIGA next argues that the board improperly concluded that CIGA had waived any claim that the statute of limitations barred the plaintiffs claim. More specifically, CIGA argues that the commissioner improperly concluded that its waiver of the statute of limitations defense provided by General Statutes § 31-294c operated as a waiver of the statute of limitations defense provided by General Statutes § 38a-841 (1) (a) (ii) (B). We disagree.

CIGA concedes that the commissioner properly found that it expressly waived the statute of limitations defense pursuant to § 31-294c. Assuming, without deciding, that CIGA did not expressly waive the statute of limitations defense under § 38a-841 (1) (a) (ii) (B), we nevertheless conclude that its waiver of a defense under § 31-294c operated as a waiver of a defense under § 38a-841 (1) (a) (ii) (B).

Our resolution of CIGA’s claim requires us to construe the meaning of the two statutes at issue. “It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. . . . Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 737, 675 A.2d 430 (1996). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Fleming v. Garnett, 231 Conn. 77, 92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). . . . [C]ommon sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result. . . . Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994); State v. Hinton, 227 Conn. 301, 320, 630 A.2d 593 (1993). . . . Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 140-41, 680 A.2d 1329 (1996).” (Citations omitted; internal quotation marks omitted.) Carpenter v. Freedom of Information Commission, 59 Conn. App. 20, 24, 755 A.2d 364, cert, denied, 254 Conn. 933, 761 A.2d 752 (2000). Where “the language of the statute is plain and unambiguous, we will not look beyond the words themselves . . . .” Szczapa v. United Parcel Service, Inc., 56 Conn. App. 325, 329, 743 A.2d 622, cert, denied, 252 Conn. 951, 748 A.2d 299 (2000). Finally, “we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter . . . .” (Citations omitted; internal quotation marks omitted.) Derwin s. State Employees Retirement Commission, 234 Conn. 411, 420, 661 A.2d 1025 (1995).

Section 38a-841 (1) (a) (ii), provides that “in no event shall . . . (B) [CIGA] be obligated for any claim filed with [CIGA] after the expiration of two years from the date of the declaration of insolvency unless such claim arose out of a workers’ compensation policy and was timely filed in accordance with section 31-294c . . . .” Here, through its express waiver, CIGA concedes that the plaintiffs claim was timely filed in accordance with the provisions of § 31-294c. When the statutes are read together, it may reasonably be inferred from their language that the legislature intended that CIGA’s express waiver of the statute of limitations defense under § 31-294c would operate as a waiver of the statute of limitations defense under § 38a-841 (1) (a) (ii) (B).

Ill

CIGA next claims that the commissioner improperly denied its motion to correct the record. More specifically, CIGA argues that because Mazzara’s reports are not based on a reasonable degree of medical probability, the commissioner should have corrected his finding to indicate that no medical opinion was introduced into the record. We disagree.

The following additional facts are necessary for our resolution of CIGA’s claim. In his findings and award dated July 3, 1996, the commissioner found that Mazzara’s opinion regarding the plaintiffs permanent partial disability was well founded, reasonable and persuasive. CIGA filed a motion to correct the commissioner’s findings, alleging, inter alia, that Mazzara’s opinion was not based on a reasonable degree of medical probability. CIGA requested that the commissioner correct his findings to reflect the fact that no medical opinion was introduced into the record. The commissioner denied CIGA’s motion to correct.

In workers’ compensation matters, “the commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . .” Keenan v. Union Camp Corp., 49 Conn. App. 280, 286, 714 A.2d 60 (1998). “We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Simmons v. Bonhotel, 40 Conn. App. 278, 286, 670 A.2d 874 (1996). In his March 21, 1995 letter, Mazzara offered his written, expert opinion regarding the permanency percentages for the plaintiffs injuries. Mazzara based his opinion on his review of his notes and the plaintiffs medical records. The commissioner, as the sole arbiter of the weight of the evidence, was entitled to accept or reject that opinion. See Keenan v. Union Camp Corp., supra, 286. Accordingly, we conclude that the commissioner properly denied CIGA’s motion to correct.

IV

CIGA claims finally that the commissioner abused his discretion by denying CIGA’s motion to open the record to admit the transcript of Mazzara’s deposition. We disagree.

“[T]he decision whether to open a compensation hearing and to admit additional evidence rests very largely within the discretion of the commissioner.” (Internal quotation marks omitted.) Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 543, 612 A.2d 1222 (1992). The party seeking to have the record opened to introduce new evidence must demonstrate, by a preponderance of the evidence, that: “(1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different, result in a new trial.” (Internal quotation marks omitted.) Id., 542.

The commissioner, in his written decision on the motion to open, found that (1) Mazzara’s July 27, 1994, report was introduced into the proceedings on July 20, 1995, (2) on September 28, 1995, the commissioner ordered that no evidence would be admitted, (3) after the commissioner’s order, CIGA requested leave to take the deposition of Mazzara, (4) the commissioner denied CIGA’s request and (5) despite the commissioner’s order, CIGA took Mazzara’s deposition. The commissioner concluded that CIGA did not present any reasonable basis that would warrant introduction of the transcript after the close of evidence. Accordingly, the commissioner denied CIGA’s motion to open.

The commissioner’s conclusion “must stand unless it is one which could not reasonably or logically be reached on the subordinate facts.” (Internal quotation marks omitted.) Id., 543. On the basis of the facts as found by the commissioner, we conclude that the commissioner did not abuse his discretion by denying CIGA’s motion to open the record.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The other defendants are Enfield Ford, Inc., Transamerica Insurance Company, and St. Paul Fire and Marine Insurance Company. Transamerica Insurance Company and Enfield Ford, Inc., filed a joint brief as appellees. St. Paul Fire and Marine Insurance Company joined in the plaintiff appellee’s brief in part.

       Mazzara did not assign any permanency to the fourth injury.

       Specifically, the commissioner found that CIGA’s refusal to accept its share of the permanency, its repeated attempts to introduce the deposition and its disingenuous arguments all contributed to delay in the payment of benefits to the plaintiff.

       General Statutes § 31-300 provides in relevant part that “[i]n cases where, through the fault or neglect of the . . . insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award ... a reasonable attorney’s fee. ...”

       General Statutes § 31-294c (a) provides in relevant part: “No proceedings for compensation . . . shall be maintained unless a written notice of claim for compensation is given within one year- from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease .... Notice of a claim for compensation may be given to the employer or any commissioner . . . .”

       General Statutes § 38a-841 (1) (a) (ii) provides in relevant part: “[I]n no event shall . . . (B) [CIGA] be obligated for any claim filed with [CIGA] after the expiration of two years from the date of the declaration of insolvency unless such claim arose out of a workers’ compensation policy and was timely filed in accordance with section 31-294c . . . .”

       In support of its position, CIGA cites to portions of two letters written by Mazzara. In the first letter, dated June 3, 1994, Mazzara wrote that “since that was the first time I had an opportunity to evaluate the [plaintiff], it is not possible for me to attribute an apportionment of the permanency rating to specific previous injuries.” In the second letter, dated July 27, 1994, Mazzara wrote that “[i]t is difficult if not impossible to assign a [permanency] percentage to each specific event in an individual who has made multiple and recurrent episodes and reinjuries to his lower back.” Mazzara, in a subsequent letter, dated March 21, 1995, attributed 40 percent of the plaintiffs partial permanent disability to the first injury, 40 percent to the second iryury and 20 percent to the third ipjury. As a basis for his opinion, Mazzara cited his notes regarding the plaintiffs treatment for the injuries and a magnetic resonance imaging report.

       CIGA argues that pursuant to our holding in Card v. State, 57 Conn. App. 134, 747 A.2d 32 (2000), the commissioner improperly credited Mazzara’s expert opinion because his letters of June 3, 1994, and July 27, 1994, reveal that his opinion could not have beenbasedona reasonable probability. See id., 138-39. We conclude, however, that as the sole arbiter of the weight of the evidence; Keenan v. Union Camp Corp., supra, 49 Conn. App. 286; the commissioner properly determined that Mazzara’s March 21, 1995 opinion was based on a reasonable probability.

       CIGA makes three other claims that are equally without merit. First, CIGA claims that the commissioner improperly failed to follow the controlling case law in Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 705 A.2d 1012 (1997). Because we agree with the board’s conclusion that the facts of Hunnihan are inapposite to the facts here, we reject CIGA’s claim. Second, CIGA claims that the commissioner improperly admitted Mazzara’s medical reports into evidence. On the basis of our review of the record, we conclude that this claim is raised for the first time on appeal. We therefore refuse to review the claim. See Practice Book § 60-5. Third, CIGA claims that the commissioner improperly denied CIGA its right to cross-examine Mazzara. On the basis of our review of the record, we conclude that CIGA was not denied its right to cross-examine Mazzara.


source: Caselaw Access Project

author: SHEA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALSTON WILLIAMS
    (AC 21243)
    Sehaller, Flynn and Shea, Js.
    Argued March 2
    officially released August 14, 2001

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dawn Gallo, deputy assistant state’s attorney, for the appellee (state).
   Opinion

SHEA, J.

The defendant, Alston Williams, appeals from the judgment of conviction rendered by a panel of three judges of the Superior Court. The panel found him guilty of murder in violation of General Statutes § 53a-54a as charged in the first count of the information, arson murder in violation of General Statutes § 53a-54d as charged in the second count and arson in the third degree in violation of General Statutes § 53a-113 as charged in the third count. On appeal, the defendant claims that (1) the court improperly denied his motion to suppress the several statements he made to or in the presence of the police, (2) the court’s finding that he was competent to stand trial and that no further competency examinations were necessary violated due process and (3) his conviction for arson murder is not supported by the evidence because the victim’s death did not occur in the course of the arson as required by § 53a-54d. We affirm the judgment of the trial court.

The panel, as the trier of fact, reasonably could have found the following facts. On December 22, 1996, at approximately 6:22 a.m., the Hartford police received a 911 call reporting that the apartment building at 61 Imlay Street in Hartford was on fire and that a person in the building was in need of immediate medical assistance. The telephone call was made by Jennifer Garrison, who lived in an apartment on the second floor directly beneath apartment 304, which was occupied by the defendant on the third floor. Garrison had heard furniture being moved in the defendant’s third floor apartment. When the noise became louder and a woman started to yell and then to scream, Garrison called the police for emergency assistance.

Stephen Hanks, who lived next door to the defendant in apartment 303, also heard the noise of moving furniture and the screams of a woman, as well as her cries for help emanating from the defendant’s apartment. Looking through the peephole of his apartment door, Hanks saw a woman in the hallway who was saying: “[H]e set me on fire, he set me on fire.” Another witness, Yusef Delaine, who lived in apartment 302, saw a woman knocking on doors as she ran through the hallway and heard her screaming: “[H]elp, he tried to set me on fire, he tried to bum me.” Garrison, accompanied by a neighbor, left her apartment and walked up a rear staircase to the third floor hallway, where she encountered Jearline Blakely, the victim, who was in pain because the upper half of her body had been burned pink. Blakely was screaming: “ [¶] e set me on fire, somebody help me.” She stopped screaming when Garrison told her to go downstairs and await the assistance of the emergency personnel who were in transit to the apartment building.

At that time, smoke began to emerge from under the door of the defendant’s apartment, and Hanks observed the defendant, wearing no clothing, exit from the apartment into the hallway. He asked Hanks for some clothes, and Hanks gave him a pair of pants. Thereafter, Hanks went downstairs and learned that the victim was with a neighbor in a first floor apartment.

Police officers arrived at the scene soon after receiving the 911 call. Sergeant Edmund Pawlina arrived shortly after the first group of officers. Pawlina and other officers entered a first floor apartment and were directed to the kitchen, where they found Blakely, who was naked from the waist up. She was wedged into a small space between the sink and the stove. She was badly burned on her face and on her upper torso. Pieces of skin were hanging off her body and her flesh was blistering in spots and oozing blood. She was shaking, crying, groaning and screaming in pain.

Pawlina testified that Blakely named the defendant as her assailant, and stated that she and the defendant had been drinking in his apartment, that their relationship was over and that he did not want her to leave. An argument ensued and the defendant became angry. He splashed some lighter fluid or kerosene on her from a plastic bottle that he kept in the kitchen of his apartment. He lighted a match and flicked it at her, but it went out. Blakely pleaded with him not to light another, but he lighted a second match and threw it on her, igniting the lighter fluid or kerosene and setting her on fire. She told the officers that the defendant was somewhere in the building.

Pawlina and Officer Ronald DaMotta, accompanied by other officers, left the first floor apartment and went upstairs to the third floor of the building. When Pawlina reached the third floor landing, the defendant walked over to him and the other officers, and said, “I am the one you are looking for, I burned her, I did it, the fire is in my apartment, number 304.” Pawlina testified that none of the officers had said anything to the defendant or had given him a Miranda warning before he made those statements. Pawlina asked the defendant for his name, and the defendant responded, “Alston Williams.” The defendant was handcuffed and then asked if he could get a shirt. Officer Bryant Moore escorted him down the stairs and out of the building into a police cruiser. Moore then read the standard Miranda warning to him. Thereafter, the defendant was taken to police headquarters.

The police officers attempted to extinguish the fire in the defendant’s apartment, but were unable to do so. They ordered the evacuation of the residents inside the building. Blakely was taken to the emergency room at Saint Francis Hospital and Medical Center, where she was diagnosed as having life threatening second and third degree burns on her face, neck and upper body. During an interview, she told emergency room personnel that kerosene had been poured on her and that she had been set on fire. She was given morphine on four occasions for the pain resulting from her bums. Thereafter, she was flown to the bum unit at Bridgeport Hospital, where she died after forty-one days of medical treatment. An autopsy revealed that Blakely’s death was caused by complications from the thermal bums that covered 45 to 55 percent of her body.

At police headquarters, the defendant received another Miranda warning and was then questioned by Detective James Rovella. The defendant never asserted his right to remain silent. He told the police that he and Blakely had been drinking in his apartment when an argument ensued, the nature of which he refused to reveal. The defendant stated that Blakely picked up a bottle of lighter fluid that was in the apartment. The defendant pushed her, causing the kerosene to splash on her body. He said he did not know how the fire started. The defendant was calm and even tempered. Despite an odor of alcohol emanating from him, he did not appear to be intoxicated.

In the emergency room, DaMotta spoke to Blakely before hospital personnel began to attend to her. At trial, DaMotta testified that Blakely told him that she and the defendant had gone into his apartment, where they were drinking. When she decided that she wanted to leave, the defendant became angry because he did not want her to leave. They started to argue, and he picked up a plastic bottle of kerosene and started splashing it on her. He remained angry and started flicking lighted matches onto her, eventually igniting the kerosene.

Later in the day, at approximately 2:45 p.m., police investigators and a fire inspector from the Hartford fire department entered the defendant’s apartment to determine the cause of the fire. They smelled a strong odor of kerosene or some other petroleum derivative. The heaviest fire damage was in the kitchen, which they concluded was the point of origin of the fire. They also concluded that the fire had been started with a liquid accelerant and matches.

At trial, the defendant testified and gave a different account of the incident from that described in his unsolicited confession. He said that he and Blakely were friends and lovers. The defendant stated that Blakely knew that their relationship would end if his wife left Jamaica to join him in Hartford. He believed that Blakely also had relationships with two other men. On the day before the fire, he and Blakely had dinner together in his apartment. He testified that he had three or four drinks between 11 p.m. and 2 a.m., but that Blakely drank less. They went to bed about 2 a.m., and the defendant woke up between 5:30 and 6 a.m. Blakely was already out of bed. Both the defendant and Blakely resumed drinking that morning. When he went to the bedroom to get Blakely’s Christmas present for her to take home, he felt something hit him on the back. It was a plastic container of lighter fluid that he kept in the kitchen. He picked it up and threw it back at Blakely in accordance with a game they sometimes played. He testified that she caught the container and there was a lighter in her hand and the fire went up. Blakely walked to the sink and turned the water on, which did not seem to help, so she walked past him and went out the front door of the apartment. She did not scream while she was inside the apartment. When the defendant saw the flames inside the apartment, he became frightened and walked out into the hallway without putting on any clothes. A neighbor threw him a pair of pants to wear. The defendant testified that he never saw Pawlina until he appeared in court.

Thereafter, the defendant was convicted on all three counts. Pursuant to State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert, denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), the court merged the conviction for murder and arson murder and, on June 25, 1999, imposed an effective sentence of life imprisonment without the possibility of parole. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress several statements he made to or in the presence of the police. The challenged statements were made by the defendant (1) to Pawlina, and other officers, on the third floor landing outside the defendant’s apartment, (2) to himself, which were overheard by Moore while the defendant was in the police cruiser, (3) to DaMotta while the defendant was in the police cruiser and (4) during Rovella’s interrogation at the police station.

A

The first statement that the defendant claims should have been suppressed by the court is his unsolicited outburst to Pawlina and Moore as they reached the third floor landing. Pawlina testified: “[U]pon going up the stairs, and upon reaching the third floor landing, I saw the defendant in the hallway, standing in the hallway. . . . Upon stepping onto the hallway myself from the stairs, the defendant saw me and the other officers, and immediately walked over to us. . . . The defendant simply walked over to us and stated that — something to the effect of, ‘I’m the one you’re looking for. I burned her. I did it. The fire is in my apartment.’ ” Pawlina further testified that neither he nor any other officer had said anything to the defendant before he made those statements.

The defendant contends that at the time he made the statements, he was distraught because of the incident and was standing naked in the hallway when the uniformed police officers, who had sidearms, converged on him from both the front and back staircases. On the basis of those circumstances, the defendant claims that he was effectively in custody when he made the statements and, therefore, his confession violated Miranda. The defendant also claims, on the basis of those circumstances, that his admission was involuntarily made. We are unpersuaded.

In its memorandum of decision on the defendant’s motion to suppress, the court found that the constitutional requirements of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), did not attach because the defendant’s confession preceded any police interrogation and because the defendant was not taken into custody before he made the incriminating statement to Pawlina. The court further found that the statement was voluntarily made. Accordingly, the court denied the defendant’s motion to suppress that statement.

Before addressing the merits of the defendant’s claims, we must first elucidate the proper standard of our review. In State v. Pinder, 250 Conn. 385, 411-13, 736 A.2d 857 (1999), “our Supreme Court clarified the proper scope of appellate review of a trial court’s determination of custody.” State v. Corbin, 61 Conn. App. 496, 503, 765 A.2d 14, cert, granted on other grounds, 256 Conn. 910, 911, 772 A.2d 1124, 1125 (2001). Our Supreme Court stated that “[i]n spite of our prior use of the ‘substantial evidence’ language . . . our approach long has been to conduct a plenary review of the record in order to make an independent determination of custody.” State v. Pinder, supra, 412; State v. Corbin, supra, 503. With that standard of review in mind, we now turn to the defendant’s claim.

There is little substance to the defendant’s claim that his spontaneous confession violated his Miranda rights. The essence of the holding in Miranda is summarized in that opinion as follows: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra, 384 U.S. 444. Accordingly, “[f]or Miranda rights to attach, the following two requirements must be met: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. Miranda v. Arizona, [supra, 444].” (Internal quotation marks omitted.) State v. Corbin, supra, 61 Conn. App. 502; see State v. Atkinson, 235 Conn. 748, 757, 670 A.2d 276 (1996). “[A]lthough the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. . . . Further, the United States Supreme Court has adopted an objective, reasonable person test for determining whether a defendant is in custody. . . . Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant’s position would believe that he or she was in police custody of the degree associated with a formal arrest.” (Internal quotation marks omitted.) State v. Corbin, supra, 502-503.

In the present case, the statements made by the defendant when the police officers arrived at the third floor landing were not preceded by any questioning, let alone custodial interrogation. They appear to have been spontaneous, possibly actuated by remorse or the excitement of the occasion. Nothing in Miranda even suggests that such statements should be suppressed. Furthermore, the record lacks any evidence that would support the defendant’s assertion that he was constructively in police custody at the time he made his confession. A reasonable person would not conclude that he was in police custody by the mere approach of police officers in the present case.

The court concluded, and we agree, that the defendant was not in custody and was not interrogated by police until after he confessed. Pawlina testified that prior to any interrogation and before the defendant was taken into custody, the defendant had spontaneously confessed that: “I’m the one your looking for. I burned her. I did it. The fire is in my apartment.” Pawlina further testified that by the time they reached the third floor landing, “we knew we were looking for somebody that had started a fire. I — I didn’t know it was the defendant at the time. But, since he had made those statements, we immediately took him into custody as a suspect.” On the basis of Pawlina’s testimony, we conclude that the police took the defendant into custody only after he confessed.

We note that the defendant, in his reply brief, claims that the panel should have concluded that the police did interrogate him on the basis of the testimony of Hanks, the defendant’s next door neighbor. Hanks testified that he heard the officers ask the defendant some questions when they came to the third floor landing. Hanks could not recall what questions the officers asked the defendant. Pawlina testified that neither he nor any other officer said anything to the defendant before he confessed. Pawlina also testified that he did ask the defendant for his name only after he had confessed.

On the basis of our review of the record as a whole, we conclude that the court properly found that the defendant was neither in custody nor was he being interrogated by the police when he confessed. Accordingly, we conclude that his Miranda rights had not yet attached, and the defendant cannot prevail on his claim.

The defendant also claims on appeal that his statement on the third floor landing was involuntarily made, and the court’s refusal to suppress the statement deprived him of due process. “[T]he use of an involuntary confession in a criminal trial is a violation of due process. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Miranda v. Arizona, supra, [384 U.S. 461-63]; State v. DeAngelis, 200 Conn. 224, 232, 511 A.2d 310 (1986). The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Corbin, supra, 61 Conn. App. 505; see State v. Pinder, supra, 250 Conn. 418.

Before addressing the merits of the defendant’s claims, we must first outline the proper scope of appellate review of a trial court’s determination of the voluntariness of a statement. “[T]he proper scope of review [of] the ultimate issue of voluntariness requires us, not to ascertain whether the trial court’s finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness. . . . State v. Pinder, supra, 250 Conn. 420-21.” (Internal quotation marks omitted.) State v. Corbin, supra, 61 Conn. App. 506.

Having that standard of review in mind, we now must determine whether the defendant’s statement was voluntary.

“We make such a determination by examining the totality of the circumstances surrounding the confession, and determining whether the confession [was] the product of an essentially free and unconstrained choice by the maker. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep. . . . State v. James, 237 Conn. 390, 410-11, 678 A.2d 1338 (1996).” (Internal quotation marks omitted.) State v. Corbin, supra, 61 Conn. App. 506. With those principles in mind, we turn to the merits of the defendant’s claims.

Applying those factors to the present case, we conclude that the facts overwhelmingly support the court’s determination that the defendant’s confession was voluntary. It is clear that the defendant’s statement was not solicited by the police. Testimony at trial established that the defendant spontaneously confessed at the first sight of uniformed police officers. Furthermore, the defendant was not detained, and there is no evidence that the police coerced him into making the challenged statement. Accordingly, after conducting a plenary review of the entire record, we conclude that the court properly determined that the defendant’s statement to police on the third floor landing was voluntarily made.

B

The defendant next claims that the court improperly denied his motion to suppress statements that were overheard by Moore while the defendant was sitting in the backseat of a police cruiser after police had given him a Miranda warning. Specifically, the defendant claims that the statements were involuntarily made, and were not given after a knowing and intelligent waiver of his Miranda rights. We disagree.

After the defendant confessed to Pawlina on the third floor landing, he was placed in the back of Moore’s police cruiser. Moore first gave the defendant the standard Miranda warning, which he read from a card. He then asked the defendant to state his name and date of birth. He asked no other questions of the defendant. The defendant, who was wearing only a pair of pants without a shirt or shoes, said he was cold. Moore told him that the heat in the cruiser was on, but asked no further questions. Moore testified, however, that, while they sat in the cruiser awaiting an additional officer, he heard the defendant talking to himself in a low voice. The defendant stated something to the effect, “I can’t believe this is happening. What am I going to tell my family back in the island? ... I can’t believe, you know, I’m ruining my life like this.” At no time, while the defendant was in Moore’s cruiser, did he say that he wanted to remain silent or that he wanted an attorney, despite having been informed of his Miranda rights. Moore testified that the defendant was calm, coherent, spoke in a clear and low voice, and did not appear to be under the influence of alcohol.

Because the defendant was in custody and was properly advised of his Miranda rights, our resolution of his claim requires us to determine whether he made a valid waiver of his rights. “Pursuant to the fifth and fourteenth amendments to the United States constitution, a statement made by a defendant during custodial interrogation is admissible only upon proof that he . . . waived his rights [under Miranda] .... To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. . . .

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings ... his level of intelligence, including his IQ . . . his age . . . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication ... his emotional state . . . and the existence of any mental disease, disorder or retardation. . . . Furthermore, [a] defendant’s express written and oral waiver is strong proof that the waiver is valid.” (Citation omitted; internal quotation marks omitted.) State v. Lewis, 60 Conn. App. 219, 244-45, 759 A.2d 518, cert, denied, 255 Conn. 906, 762 A.2d 911 (2000); State v. Fernandez, 52 Conn. App. 599, 610-11, 728 A.2d 1, cert, denied, 249 Conn. 913, 733 A.2d 229, cert, denied, 528 U.S. 939, 120 S. Ct. 348, 145 L. Ed. 2d 272 (1999).

The court concluded that the defendant’s statements were voluntary and amounted to a knowing, voluntary and intelligent waiver of his Miranda rights. In its memorandum of decision denying the defendant’s motion to suppress, the court stated that “the defendant’s waiver in the cruiser was knowingly, voluntarily and intelligently made; that the admissions, if inculpatory, were voluntarily and readily tendered by the defendant.” The court found that the defendant was properly administered his Miranda warnings after being placed in the cruiser. Thereafter, the defendant was not questioned by police officers, but spoke voluntarily.

The record discloses no evidence of threats, promises, coercive or deceptive measures employed by the police officers in an attempt to elicit a confession from the defendant. Furthermore, the defendant was calm, coherent, spoke in a clear and low voice, and did not appear to be under the influence of alcohol when he made the challenged statement. Our scrupulous review of the record leads us to conclude, as did the court, that the defendant’s statements were voluntarily made, and that he voluntarily, knowingly and intelligently waived his Miranda rights which, the police properly and timely administered to him.

C

The third set of statements that the defendant claims the court should have suppressed are those he made to DaMotta from the police cruiser. The defendant claims that those statements were involuntarily made, and were not given after a knowing and intelligent waiver of his Miranda rights. We disagree.

Approximately ten to twenty minutes after being placed in the backseat of the cruiser, the defendant had a three to ten minute conversation with DaMotta, who stood near the open rear door of the cruiser. Moore remained in the driver’s seat of the cruiser behind a Plexiglas barrier. The defendant smelled of alcohol, but did not appear to DaMotta to be intoxicated. DaMotta asked the defendant if he understood his rights, and the defendant replied that he did. DaMotta again read the Miranda warnings to the defendant. The defendant said he understood those warnings, but he did not request an attorney. In response to DaMotta’s questions, he stated that he and the victim had been drinking, that they argued, that the victim picked up a bottle of kerosene, that he pushed the victim, causing her to splash kerosene on herself, that he passed out and that he could not remember how the fire had started. DaMotta repeatedly asked the defendant how the fire started, but the defendant repeatedly insisted that he did not know. DaMotta concluded that he could elicit no additional pertinent information from the defendant, and the conversation ended.

The court found that the defendant’s statements to DaMotta were voluntarily offered. The court further concluded that the defendant properly waived his Miranda rights. Our review of the record as whole indicates that the defendant’s statements were voluntarily made. The record contains no evidence of threats, promises or coercive or deceptive measures used by the police. Furthermore, after being read his Miranda warnings for the second time, the defendant consistently told DaMotta that he understood his rights. The record includes no evidence that the defendant did not understand the rights being read to him or that the waiver thereof was the product of police coercion or intoxication, mental defect, unstable emotional state or a deficient educational background. Accordingly, we conclude that, after receiving his Miranda warning for the second time, the defendant voluntarily, knowingly and intelligently waived his Miranda rights.

D

The fourth set of statements that the defendant claims should have been suppressed by the court are those he made to Rovella at the police station. The defendant claims that those statements were involuntarily made, and were not given after a knowing and intelligent waiver of his Miranda, rights. We disagree.

The defendant was taken to police headquarters, where he eventually was escorted into a heated interview room by a uniformed officer. The doors of the room were locked. The defendant’s handcuffs were removed, and he was given a cup of coffee. The defendant testified that after drinking the coffee, he started walking uncontrollably in circles. He declined an offer of food. About one-half hour after the defendant entered the interview room, Rovella entered and told him that he was under arrest. Rovella then described the charges against the defendant. At approximately 10 a.m., Rovella again read the Miranda warnings to the defendant from a standard police form. The defendant said he understood each right after it had been read to him. After the waiver section of the form had been read to the defendant, he signed and dated it. When questioned by Rovella, the defendant said he wanted to speak to the police without his attorney being present. The defendant then described his relationship with the victim, his jealousy and his desire to end their relationship upon learning that she had a husband and another boyfriend. He spoke about eating and drinking with the victim in his apartment.

The court found, and after our review of the record as a whole we agree, that the statements to Rovella at the police station were voluntarily made. The record contains no evidence of threats, promises or coercive or deceptive measures by the police. We are therefore persuaded that the defendant voluntarily answered Rovella’s questions during the interrogation at the police station.

The court also found, and we agree, that the defendant’s waiver of his Miranda rights was voluntarily, knowingly and intelligently made. After again being advised of his Miranda rights, the defendant signed a standard waiver form. “[A] defendant’s express written and oral waiver is strong proof that the waiver is valid.” (Internal quotation marks omitted.) State v. Lewis, supra, 60 Conn. App. 245; see State v. Northrop, 213 Conn. 405, 418, 568 A.2d 439 (1990). The record lacks any evidence that the defendant did not understand his rights or that his waiver was not voluntarily, knowingly or intelligently made. Accordingly, we are persuaded, as was the court, that the defendant understood the ramifications of signing the waiver form and that his express waiver was not the product of police coercion or intoxication, mental defect, unstable emotional state or deficient educational background. We conclude, therefore, that the defendant voluntarily, knowingly and intelligently waived his Miranda rights prior to answering Rovella’s questions at the police station.

In summation, we conclude that the defendant’s unsolicited confession to the officers when they reached the third floor staircase landing was voluntarily made and was not preceded by any custodial interrogation, and that none of the statements made by the defendant to the police after being advised several times of his Miranda rights should have been suppressed. The court’s conclusions are legally and logically correct, and are supported by the facts set out in the record. Accordingly, we affirm the court’s denial of the defendant’s motion to suppress.

II

The defendant next claims that the court’s rejection of a finding by Patrick K. Fox, a psychiatrist with the New Haven court clinic, that the defendant was incompetent to stand trial and the court’s refusal to grant the defendant’s subsequent requests for additional evaluations of his competency violated due process. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. On June 26, 1997, the defendant appeared in court for a competency evaluation at the request of counsel representing him at that time. The court diagnostic clinic previously had submitted a six page report, which both counsel and the court had reviewed. The clinic’s conclusion was that the defendant was competent, that he understood the proceedings and that he was capable of cooperating with counsel. The defense counsel stated, on the basis on his conversation with the defendant that morning and his reading of the report, the defendant was competent at that time and counsel was prepared to waive a hearing on the report. The court stated that it had reviewed the report, and had found that the defendant was competent to stand trial in that he understood the charges against him and was able to assist in his defense. The court also granted counsel’s request for additional time and continued the case until July 24, 1997.

On January 6, 1999, the defendant again appeared in court. Since the initial competency evaluation, another attorney from the public defender’s office had been assigned to represent the defendant. The presiding judge of the three judge panel conducted a lengthy inquiry of the defendant to determine whether he understood the charges against him and could assist his new counsel in presenting a defense. The court explained that the first count of the information filed by the state charged the defendant with causing Blakely’s death, the second count charged him with arson murder and the third count charged him with having committed arson in the third degree. The court also explained that the defendant could testify in his defense, but that he was not required to do so because he also had a right to remain silent and receive the benefit therefrom. The court also described the role of the courtroom personnel, the prosecutor, the clerk, the deputy sheriffs, the court stenographer and its own position as the judge. The court inquired whether the defendant ever had any history of psychiatric care before the incident at issue and whether he had ever been under the influence of any prescriptions, medications or drugs in his lifetime. The court also inquired whether the defendant had ever been addicted to alcohol or drugs. The defendant responded negatively to all of those questions. At the conclusion of its colloquy with the defendant, the court stated: “I’m absolutely satisfied, on this date, which is January 6,1999, as I observe [the defendant], as I listen to his answers, as I see his reaction to my questions and his responses, that he is totally competent. That he is cooperative. He’s attentive. He’s responsive. And that he can assist [the defense counsel] in the defense of — of this case. That he understands the charges fully.”

Thereafter, on February 22, 1999, counsel for the defendant filed a motion for a competency evaluation pursuant to General Statutes § 54-56d. Attached to the motion was a letter bearing the same date from Ezra E. H. Griffith, a psychiatrist and professor of psychiatry at the Yale University School of Medicine. The letter was an interim report of his examination of the defendant pursuant to a request by the defense counsel for the purpose of determining the psychiatric status of the defendant on December 22, 1996, when the fire that caused the death of the victim occurred. Griffith had interviewed the defendant at the Hartford Correctional Center on January 10,16 and 18,1999, for approximately nine hours. The letter states that Griffith had formed the opinion that the defendant was suffering from a psychotic disorder that was characterized by the presence of delusions, paranoid thinking, illogical reasoning and bizarre associations. He recommended that the defendant undergo a neuropsychiatric evaluation that would include certain laboratory tests and brain imaging. The letter stated, however, that the defendant had refused such an evaluation, and that it was noteworthy that the depth and significance of the defendant’s psychiatric disorder was partially hidden by an external demeanor of respectful interaction. The letter cited several examples of the defendant’s delusions, such as his belief that the police had put something in the cup of coffee they gave to him after he was arrested and was taken to the police station. Griffith also stated that his contacts with the defendant had raised questions in Griffith’s mind about the defendant’s capacity to assist counsel in his defense. Griffith stated further that he had been struck by the marked rigidity and suspiciousness that characterized the defendant’s thinking, as well as the bizarre reasoning that the defendant had employed in the discussion of his case and in conceptualizing his strategic options. Griffith also stated that the defendant had substantive difficulty in differentiating between objective reality and what he imagined to be true.

The hearing on the defendant’s motion took place on February 23, 1999. The court recalled that, at the January 6, 1999 hearing, it had found that the defendant fully understood the charges against him, could assist his attorney in the defense of his case and was totally competent to stand trial. The defense counsel informed the court that, since the January 6, 1999 hearing, she had observed the deterioration of the defendant’s mental state, which greatly affected his ability to assist in his defense. She told the court that the defendant had refused to give her information that might support his claim that Blakely was not herself at the time of the incident that caused her death. He also had refused to consider a defense of mental disease. After some further questioning of the defendant by the court, the motion for a competency examination of the defendant pursuant to § 54-56d (c) was granted.

One month later, the defendant sent a letter to his attorney, the third to represent him in this matter, requesting that she no longer represent him in the pending criminal case against him. His attorney filed a copy of the letter with the court and also gave a copy to the prosecutor. The court treated the letter as a motion to remove his attorney from the case and held a hearing on the motion on March 18, 1999. The court construed the letter as an expression of the defendant’s frustration over the strategy and tactics being pursued by his attorney, particularly with regard to the competency examinations she had arranged and her suggestions that he should pursue an insanity defense even though he claimed never to have had any previous mental problems and believed he was capable of assisting her in the defense of his case. The court concluded that there was no basis for removing the defendant’s attorney from the case.

On April 1, 1999, the court held a hearing on a report of the court diagnostic clinic, to which the court had referred the defendant for a competency examination pursuant to § 54-56d (c) at the hearing on February 23, 1999. The report was dated March 22, 1999, and was written by Fox on behalf of the commissioner of mental health and addiction services. Fox had examined the defendant on March 5, 1999, at the Walker correctional institution for approximately two and one-half hours. The report states as a finding that, at the time of the evaluation, the defendant was not able to demonstrate a rational understanding of the proceedings against him and to assist in his defense.

When interviewed by Fox, the defendant denied any previous contact with mental health professionals or prior psychiatric difficulties. He denied any history of medical problems, seizures or head trauma. He said he was an occasional drinker. He denied a history of blackouts or withdrawal symptoms associated with a cessation of alcohol use. He denied ever having received treatment for alcohol or drug abuse and denied having used illicit substances. He said he had no prior difficulties with the law and that, at the time of the incident, he was working as a cook at a restaurant chain.

Fox reported that the defendant’s thought processes were circumstantial, overly detailed and at times digressive. He was unable to provide summarized information or to give conclusory statements without first describing in detail their antecedents. He denied experiencing auditory or visual hallucinations. He also denied having thoughts of harming himself or others, and denied any disturbance in sleep, energy, appetite or concentration. The defendant was alert and generally attentive. His attention and concentration when formally tested were intact. His short-term memory was generally intact when tested, and his long-term memory was reasonably intact. His intelligence and general fund of knowledge were assessed by Fox to be in the average range.

When asked to state the charges against him, the defendant replied: “Arson, assault and murder.” He also demonstrated an understanding of the police allegations with respect to his case and the circumstances in which they were alleged to have occurred. He demonstrated an understanding of the seriousness of the charges, but stated that he was not concerned. He also was able to define correctly the roles of the various courtroom personnel. When asked to describe the role of the defense counsel, he replied: “To protect and defend the defendant against the allegations of the state. That’s what it should be.”

Fox testified at the hearing on his report in support of his opinion that the defendant was incompetent to stand trial because of his delusions about the police conspiring against him, fabricating the charges, bribing witnesses and placing some drug in the cup of coffee they gave him at the police station after his arrest that caused him to walk in circles. Fox was questioned extensively by the defendant’s attorney, the prosecutor and the court.

Fox conceded that the defendant was aware of the charges against him, but maintained that he was not competent to stand trial because his delusions about the police conspiracy against him rendered him unable to assist his attorney in defending him. He recommended that the defendant be sent to a mental hospital for sixty days to receive treatment to dispel his delusions and restore his competency. The court concluded, however, that the only problem between the defendant and his attorney was their disagreement over raising the defense of insanity, which his attorney had recommended. The court declared that the decision of whether that defense should be raised was ultimately that of the defendant. It held that the defendant had failed to sustain his burden of proving he was incompetent by a preponderance of the evidence.

On May 11,1999, prior to the commencement of trial before the panel, the defense counsel made an oral motion for a new competency examination, arguing that the defendant suffered from a delusional disorder that made him unable to distinguish reality from fantasy, and prevented him from appropriately evaluating the evidence against him and making appropriate decisions in his case. Counsel presented another report from Griffith in which he concluded that the defendant was suffering from a psychotic disorder at the time the burning incident occurred. She also informed the court that she had discussed the report with the defendant and that he still refused to pursue an insanity defense. The court denied the motion for another competency examination, finding no basis for concluding that the defendant was not competent to assist his attorney in his defense or that he was unable to understand the proceedings against him.

Before the defendant was sentenced, but following his conviction, his counsel once again filed a motion for a competency examination pursuant to § 54-56d (c). The court again denied the motion, stating that the panel had an opportunity to hear the defendant testily and that he was lucid, coherent, logical, prepared for court proceedings, helpful to his defense counsel, and had presented his version of the facts in a logical and coherent maimer.

We begin our analysis by first noting the appropriate standard with which we review the defendant’s claim. We review the court’s determination of competency under an abuse of discretion standard. State v. Johnson, 253 Conn. 1, 27 n.26, 751 A.2d 298 (2000). “In determining whether the trial court [has] abused its discretion, this court must make eveiy 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.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 254 Conn. 659, 665-66, 759 A.2d 79 (2000).

The “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. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1 . . . .” (Citations omitted; internal quotation marks omitted.) State v. Johnson, supra, 253 Conn. 20. “This constitutional mandate is codified in ... § 54-56d (a), which provides that [a] defendant shall not be tried, convicted or sentenced while he is not competent. [A defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.]” (Internal quotation marks omitted.) State v. Garcia, 233 Conn. 44, 67, 658 A.2d 947 (1995). “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. ... Id.....Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.” (Citation omitted; internal quotation marks omitted.) State v. Johnson, supra, 20-21.

Section 54-56d (b) provides: “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.” “Although § 54-56d (b) presumes the competency of defendants, when a reasonable doubt concerning the defendant’s competency is raised, the trial court must order a competency examination. . . . Thus, [a]s a matter of due process, the trial court is required to conduct an independent inquiry into the defendant’s competence whenever he makes specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency. . . . The trial court should carefully weigh the need for a hearing in each case, but this is not to say that a hearing should be available on demand. The decision whether to grant a hearing requires the exercise of sound judicial discretion.” (Citations omitted; internal quotation marks omitted.) Id., 21-22.

A court may undertake a competency examination upon a motion by the defendant or the state and in some circumstances must evaluate the defendant’s competency sua sponte. General Statutes § 54-56d (c). “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 he is charged, the court shall order an examination of the defendant as to his competency. . . .” General Statutes § 54-56d (d). “[A] trial court must order a competency hearing at any time that facts arise to raise a reasonable doubt about the defendant’s competency to continue with the trial.” (Internal quotation marks omitted.) State v. Johnson, supra, 253 Conn. 23.

Although the defense counsel’s persistence in moving at every opportunity for a competency examination of the defendant may be commendable, the preponderance of the evidence does not suggest that the defendant’s mental condition had deteriorated since December 22, 1996, when the fire in his apartment occurred. The record lacks any credible evidence that could raise a reasonable doubt about the defendant’s competency throughout the course of the proceedings. His refusal to raise the defense of insanity, as recommended by his counsel, is not an indication of incompetency, but rather a disagreement over trial strategy. The court had informed the defendant that if he were found not guilty because he was suffering from a mental disease or defect, he would be committed to the custody of the commissioner of mental health. He may not have preferred that alternative to confinement in prison.

The defendant’s delusionary thoughts, referred to by the psychiatrists who examined him, such as his claim that the police put some drug in the cup of coffee he was given at the police station and his belief that the occupants of his apartment building as well as the police were conspiring against him, may well have been his way of coping with the dire situation confronting him. As for his ability to assist his counsel, it was the defendant who concocted the defense presented at trial that, when he threw the plastic bottle of lighter fluid at the victim after she had thrown it at him, she had a lighter in her hand and the fire went up. If the three judge panel had believed the defendant’s account of the incident, they might well have concluded that the victim’s death was accidental.

We therefore conclude that the court did not abuse its discretion in denying the defendant’s numerous motions for competency examinations after the court had rejected the conclusion of Fox that the defendant was incompetent to stand trial. We also affirm the court’s conclusion that the defendant was competent to stand trial in April, 1999.

Ill

The defendant claims that there was insufficient evidence to support his conviction of arson murder in violation of § 53a-54d. We disagree.

Before reaching the merits of the defendant’s claim, we must first determine if it is properly before this court. The defendant concedes that this issue was not raised at trial, but claims the benefit of Practice Book § 60-5 and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which allows a reviewing court to entertain claims of constitutional error not properly raised at trial. Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Payne, 63 Conn. App. 583, 587, 777 A.2d 731 (2001).

The record is adequate to review the defendant’s claim and the claim is of constitutional magnitude, alleging the violation of a fundamental right. Accordingly, we conclude that the issue is properly before us despite the defendant’s failure to raise it in the trial court. See State v. Roy, 233 Conn. 211, 212-13, 658 A.2d 566 (1995). We now turn to the merits of the defendant’s claim.

The defendant contends that the requirement of § 53a-54d, which is that the offender caused the death of the victim in the course of committing arson, was not proved by the evidence. Section 53a-54d provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole.”

The defendant claims that the evidence proves only that he committed the crime of murder and then, by his reckless conduct, committed the crime of arson in the third degree. The defendant, however, disregards Pawlina’s testimony that Blakely told him and other officers that the defendant became angry and splashed some lighter fluid or kerosene on her after she told him that their relationship was over and that she wanted to leave. Thereafter, the defendant lighted a match and flicked it at her. The match went out. Blakely pleaded with him not to light another, but he lit a second match and threw it on her, igniting the lighter fluid or kerosene and setting her on fire. According to that testimony, it appears that the defendant’s act of throwing a lighted match at Blakely when her skin and her clothing were saturated with kerosene or lighter fluid was the cause of her death and the ensuing fire within the apartment. There was no evidence of any other act of the defendant related to either Blakely’s death or the fire. When questioned by the police as to how the fire occurred, the defendant said repeatedly that he did not know. At trial he testified that, after he was struck in the back with the plastic bottle of lighter fluid that Blakely had thrown at him, he threw it back at her. She caught it, and there was a lighter in her hand and the fire ignited. Even under the defendant’s version of how the fire occurred, the same act that caused the victim’s death also caused the fire within the apartment.

“The phrase ‘in the course of focuses on the temporal relationship between the murder and the underlying felony.” State v. Gomez, 225 Conn. 347, 352, 622 A.2d 1014 (1993). Our Supreme Court has previously “addressed the meaning of the phrase ‘in the course of as an element of robbery, under General Statutes § 53a-133.” Id. “[I]f the use of force occurs during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after, it is considered to be ‘in the course of the robbery or the attempted robbery within the meaning of the statute.” State v. Ghere, 201 Conn. 289, 297, 513 A.2d 1226 (1986). As such, our Supreme Court has “defined the phrase ‘in the course of to include the period immediately before or after the actual commission of the crime . . . .” State v. Gomes, supra, 352.

We therefore conclude that the evidence presented at trial supports the court’s conclusion that the defendant committed arson and, in the course of committing such arson, caused Blakely’s death. Accordingly, because the alleged constitutional violation does not clearly exist and the defendant was not deprived of a fair trial, he cannot prevail on his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant withdrew his initial request for a jury trial and elected a trial by a three judge panel.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-54d provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole.”

       General Statutes § 53a-113 (a) provides: “A person is guilty of arson in the third degree when he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or of another by intentionally starting a fire or causing an explosion.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694 (1966).

       We note that the defendant, in his brief, cites Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000), which reaffirmed Miranda and states that its requirements must be made known to a suspect before any statement arising out of an in-custody interrogation is admissible against him. Nothing in Dickerson precludes the admission of statements made by a defendant prior to any interrogation and before he is taken into custody, as in the present case.

       General Statutes § 54-56d (c) provides: “Request for examination. 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.”

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”