author: Katz, J.

text:
    State of Connecticut v. James DesLaurier
    (14845)
    Peters, C. J., Callahan, Borden, Norcott and Katz, Js.
    Argued May 31
    decision released August 2, 1994

      Paul D. Eschuk, assistant public defender, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were Patricia A. Swords,
      state’s attorney, and Sandra Tullius, assistant state’s attorney, for the appellee (state).
   Katz, J.

The defendant, James DesLaurier, was convicted after a jury trial of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d, and operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of the trial court. State v. DesLaurier, 32 Conn. App. 553, 574, 630 A.2d 119 (1993). We granted the defendant’s petition for certification to appeal from the judgment of the Appellate Court, limited to the issues of whether the Appellate Court correctly concluded that the trial court properly: (1) admitted into evidence a statement made by the defendant to a police officer; and (2) denied the defendant’s motion for a competency examination under General Statutes § 54-56d. We affirm the judgment of the Appellate Court.

The jury reasonably could have found the following facts. On the afternoon of May 6, 1990, the defendant and his stepbrother, Richard Hinds, Jr., drove in the defendant’s car to a pool hall in Springfield, Massachusetts, where they remained for several hours, steadily consuming beer. During their drive home from the pool hall, at approximately 2 a.m., the defendant and Hinds were involved in a one car accident on Route 83 in Somers. The evidence indicated that the defendant’s car went out of control, skidded across the highway, crashed three times into metal guardrails, rolled over and came to a stop on an embankment off the road.

After the accident, emergency crews and Connecticut state trooper Tony Dostanko arrived separately at the scene. Upon his arrival, Dostanko observed the defendant and Hinds lying in the front seat of the car, with their bodies intertwined. Due to the position of the bodies, Dostanko was unable to discern who had been operating the car. While medical attendants extricated the defendant and Hinds from the car, the defendant, who appeared intoxicated, was very aggressive and combative. He rejected medical attention, argued aggressively with the medical attendants, attempted to remove the neck brace and restraining belt that were attached to the body board used to remove him from the car, and manifested a desire to leave the accident scene.

Although Dostanko initially avoided interfering with the medical attendants’ treatment of the defendant, he was eventually summoned by them to assist in calming the defendant. Dostanko responded by cautioning the defendant that “he should lie back and allow the medical personnel to do their job for his own safety.” Additionally, Dostanko stayed close to the defendant and shouted at him as he was being placed into the ambulance.

Thereafter, Dostanko followed the ambulance as it transported the defendant and Hinds to Johnson Memorial Hospital. When Dostanko arrived at the hospital, the defendant and Hinds were in separate, adjoining emergency rooms. Dostanko observed that the defendant, who continued aggressively to reject medical attention, was injured. Additionally, Dostanko was told by hospital personnel that the defendant was “probably going to take off.” Dostanko entered the defendant’s room, identified himself to the defendant and asked him if he had been driving the car, to which the defendant replied “No.” Dostanko next asked the same question of Hinds, who replied that “[the defendant] was driving.” Dostanko returned to the defendant’s room and told the defendant that Hinds had said that the defendant had been driving, to which the defendant replied “All right, I was [expletive] driving.” Immediately thereafter, Dostanko placed the defendant under arrest and read him his Miranda rights from a notice of rights form, which the defendant did not sign.

At trial, the defendant’s statement that he had been driving the car was admitted through Dostanko’s testimony, over the defendant’s objection. The Appellate Court upheld the validity of this riding.

I

The defendant first claims that the Appellate Court improperly affirmed the trial court’s denial of his motion to suppress the incriminating statement that he had made to Dostanko at the hospital, just prior to his arrest. Specifically, the defendant claims that Dostanko elicited the statement during custodial interrogation, without giving him the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We conclude that the Appellate Court properly determined that the defendant was not in custody when he made the statement. Accordingly, we conclude that the statement was not obtained by the police in derogation of the defendant’s Miranda rights.

“ ‘Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. Miranda v. Arizona, [supra, 384 U.S. 444].’ ” State v. Williams, 227 Conn. 101, 112, 629 A.2d 402 (1993). “The term ‘custodial interrogation’ encompasses both of these requirements, and was defined by the Miranda court as ‘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, 444].” State v. Januszewski, 182 Conn. 142, 158, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). What constitutes custody for purposes of Miranda was recently reiterated by the United States Supreme Court in Stansbury v. California, U.S. , 114 S. Ct. 1526, 1528-29, 128 L. Ed. 2d 293 (1994): “In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there [was] a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275 (1983) (per curiam) (quoting [Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977)]).” Further, the United States Supreme Court has adopted an objective, reasonable person test for determining whether a defendant is in custody. Stansbury v. California, supra, 1529; Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). 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. See Stansbury v. California, supra, 1529; 1 W. LaFave & J. Israel, Criminal Procedure (Sup. 1991) § 6.6, p. 105.

No definitive list of factors governs a determination of whether a reasonable person in the defendant’s position would have believed that he or she was in custody. Because, however, the Miranda court expressed concern with protecting defendants against interrogations that take place in a “police-dominated atmosphere,” containing “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely”; Miranda v. Arizona, supra, 384 U.S. 445, 467; circumstances relating to those kinds of concerns are highly relevant on the custody issue. See generally C. Whitebread & C. Slobogin, Criminal Procedure (3d Ed. 1993) § 16.03, pp. 385-91; 1 W. LaFave & J. Israel, Criminal Procedure (1984) § 6.6, pp. 494-99.

“ ‘The defendant had the initial burden of proving custodial interrogation. United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984); State v. Doehrer, [200 Conn. 642, 647, 513 A.2d 58 (1986)]; State v. Vitale, [197 Conn. 396, 409, 497 A.2d 956 (1985)]. The trial court’s determination that the defendant was not in custody is a finding of fact. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). That finding of fact by the trial corut will not be overturned unless it is clearly erroneous. Id.; see Practice Book § 4061; State v. Young, 191 Conn. 636, 652, 469 A.2d 1189 (1983). We will, however, carefully review the record to ascertain whether the trial court’s finding is supported by substantial evidence. State v. Toste, 198 Conn. 573, 580, 504 A.2d 1036 (1986); State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985).’ State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989).” State v. Williams, supra, 227 Conn. 113.

Applying these principles to the facts of this case, we conclude that the trial court properly found that the defendant had failed to prove that he was in custody when Dostanko asked him if he had been driving the car when the accident occurred. For purposes of this claim, the defendant contends that his custody originated at the accident scene, continued during his ambulance ride to the hospital, and carried over to the questioning that took place at the hospital. In contrast, the state argues that the defendant was not in custody either at the accident scene or at the hospital. Rather, the state contends that Dostanko merely acted for a medical purpose and in the interest of public safety at the accident scene. Additionally, the state argues that when Dostanko elicited the incriminating statement from the defendant at the hospital, the defendant had not been subjected to a formal arrest or restraint on his freedom of movement of the degree associated with a formal arrest. Oregon v. Mathiason, supra, 429 U.S. 495. We agree with the state.

We first consider the defendant’s assertion that he was in custody at the accident scene. In support of this assertion, the defendant does not argue, and the record does not indicate, that Dostanko himself either physically restrained the defendant in any way or ordered the medical attendants to restrain him physically. The defendant also does not argue that Dostanko took advantage of an inherently coercive situation created by any physical restraint that the medical attendants may have asserted against him for purposes of his treatment. See Wilson v. Coon, 808 F.2d 688, 689 (8th Cir. 1987) (Miranda might apply even if police officer questions suspect in inherently coercive situation created by ambulance attendants rather than law enforcement officers). Rather, the defendant argues solely that Dostanko’s verbal communications to him and Dostanko’s close physical presence near him as he was being placed into the ambulance subjected him to custody. We disagree and conclude that Dostanko acted solely for a medical purpose and in the interest of public safety. Accordingly, his conduct did not create a “police-dominated atmosphere” requiring Miranda warnings. Miranda v. Arizona, supra, 384 U.S. 445.

Despite the defendant’s assertion to the contrary, Dostanko did not place him in custody by virtue of talking to, shouting at, or standing close to him. As already stated, the defendant was very aggressive, combative, appeared intoxicated, and was interfering with his medical treatment at the accident site. In the face of this behavior, Dostanko told the defendant that “he should lie back and allow the medical personnel to do their job for his own safety. ” (Emphasis added.) Additionally, Dostanko’s conduct as he was being placed into the ambulance was necessary and reasonable for insuring the defendant’s physical well-being and, under the circumstances, would not be perceived by a reasonable person as creating an inherently coercive, police-dominated environment. Moreover, Dostanko’s conduct occurred in public and in view of witnesses who were not police officers—the medical attendants—thereby “reducing] the likelihood that [Dostanko would] use oppressive or abusive tactics and rendering] the situation less ‘police-dominated.’ ” Wilson v. Coon, supra, 808 F.2d 690.

Our review of the record thus discloses police conduct reasonably calculated to maintain the safety of everyone present at the accident site. Under the circumstances of this case, such conduct, in the presence of witnesses who were not police officers, would not have made a reasonable person in the defendant’s position believe that he or she was subject to a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. See Oregon v. Mathia-son, supra, 429 U.S. 495. The record, therefore, supports the trial court’s determination that the defendant was not in custody at the scene of the accident.

Our consideration of the various factors surrounding Dostanko’s questioning of the defendant in the emergency room persuades us that the defendant also was not in custody at the hospital. Again, Dostanko did not physically restrain or confine the defendant in any way when questioning him. Additionally, Dostanko, who was the sole law enforcement officer present, questioned the defendant in the public surroundings of a hospital emergency room and in the presence of witnesses who were not police officers, namely medical staff. See United States v. Griffin, 922 F.2d 1343, 1352 (8th Cir. 1990) (“[officers diminish the public character of, and assert their domination over, an interrogation site by removing a suspect from the presence of third persons who could lend moral support”); Archer v. United States, 393 F.2d 124, 125 (5th Cir. 1968) (statement that defendant made to agent of Federal Bureau of Investigation during interview that took place in familiar surrounding of her own place of business while her husband was present was admissible). There is no evidence indicating that the defendant was unable to converse with these other people, express annoyance or request assistance from them. Moreover, the duration of the questioning was momentary. Compare United States v. Kennedy, 573 F.2d 657, 660 (9th Cir. 1978) (custody when defendant interrogated for forty-five minutes), with Allen v. United States, 390 F.2d 476, 479 (D.C. Cir. 1968) (limited and brief inquiry made as part of an investigation not custody).

“Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.” Berkemer v. McCarty, supra, 468 U.S. 437. In this case, we are persuaded that Dostanko’s temporary questioning of the defendant in the public setting of a hospital did not create the type of inherently coercive, police-dominated atmosphere with which Miranda is concerned. We conclude, therefore, that the defendant was not taken into custody for the purposes of Miranda until Dostanko arrested him. Consequently, the statement the defendant made to Dostanko prior to that point was properly admissible against him.

II

The defendant next claims that the trial court improperly denied his motion for a competency examination under General Statutes § 54-56d, in violation of his rights to due process under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We disagree.

The following facts are relevant to the disposition of this claim. On January 18, 1991, the defendant’s counsel filed a motion requesting an examination of the defendant’s competency to stand trial. In support of the motion, the defendant’s counsel stated that the defendant had exhibited “irrational behavior” during prior discussions about possible plea bargain arrangements, the extent of a possible prison sentence and the possible results of a jury trial. Further, the defendant’s counsel asserted that during a pretrial conference the previous day, the defendant had experienced difficulty forming sentences, comprehending the charges against him or understanding his relationship with the victim who is his stepbrother. The state concurred with the description of the defendant’s behavior on the previous day.

The trial court thereafter canvassed the defendant, asking him specific questions about his educational background, past mental health, present understanding of the criminal proceedings and the potential consequences of his impending trial. The trial court concluded that the defendant had failed to make an adequate showing under § 54-56d, and the Appellate Court affirmed that ruling.

The defendant argues that the Appellate Court incorrectly affirmed the trial court’s denial of the defendant’s motion for a competency hearing under § 54-56d. Emphasizing the character of his behavior on the day prior to the § 54-56d motion and his monosyllabic responses to the trial court during the canvass, the defendant argues that this evidence required the trial court to grant his motion for a competency hearing. We reject this argument and conclude that the trial court properly exercised its discretion.

“General Statutes § 54-56d provides that a defendant shall not be tried, convicted or sentenced while incompetent and permits a competency hearing to be held whenever it appears that the defendant ‘is unable to understand the proceedings against him or to assist in his own defense.’ As 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. Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). “ ‘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 . . . ." Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972). State v. Watson, [198 Conn. 598, 605, 504 A.2d 497 (1986)]; see Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); de Kaplany v. Enomoto, 540 F.2d 975, 982-83 (9th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S. Ct. 815, 50 L. Ed. 2d 793 (1977); People v. Pennington, 66 Cal. 2d 508, 518, 426 P.2d 942, 58 Cal. Rptr. 374 (1967). 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. United States v. Hall, 523 F.2d 665, 667 (2d Cir. 1975); Riccardi v. United States, 428 F. Sup. 1059, 1064-65 (E.D.N.Y.), aff'd, 573 F.2d 1294 (2d Cir. 1977). ‘[Prisoners are not entitled and need not be permitted to make bald charges of mental incompetency to stand trial for the purpose simply of obtaining an excursion from the penitentiary. ... A balance must be struck between the practical and the theoretical, and this can best be done by the [trial court].’ United States v. Miranda, [437 F.2d 1255, 1258 (2d Cir. 1971)], quoting Nelms v. United States, 318 F.2d 150, 154 (4th Cir. 1963).” State v. Lloyd, 199 Conn. 359, 365-66, 507 A.2d 992 (1986).

The trial court did not abuse its discretion by denying the defendant’s motion for a competency hearing because it reasonably concluded that he had failed to raise a reasonable doubt about his competency. After defendant’s counsel brought his § 54-56d motion, the trial court listened to the evidence concerning the defendant’s recent conduct, potential communication problems and understanding of the criminal charges. The trial court considered the assertions of the defendant’s counsel and solicited the opinion of the prosecutor. Finally, the trial court canvassed the defendant about his understanding of the proceedings against him, his understanding of the plea bargain and his ability to communicate with his counsel and assist in his own defense.

As a result of its inquiry, the trial court reasonably could have found that the defendant: (1) did not suffer from any known or apparent mental illness or defect that would impair the defendant’s ability to understand the criminal proceedings or to assist in his own defense; (2) possessed minimum communication skills such as the ability to read and write; (3) understood the basic charges against him and his rights to accept or reject a plea bargain; and (4) understood the consequences of accepting or rejecting a plea bargain. Further, the trial court reasonably could have concluded that the defendant’s occasional response, “I don’t understand,” during the canvassing referred not to the defendant’s comprehension of the substance of the proceedings, but only to his frustration about the apparently lengthy duration of the pretrial proceedings and the time necessary to strike a plea bargain with the state.

Equally important, this is not a case where the trial court disregarded psychiatric, medical or historical testimony relevant to the defendant’s competency to stand trial. The defendant proffered no evidence to establish or suggest a sufficient pattern of behavior that would raise, in and of itself, a reasonable doubt about his competency. See Drope v. Missouri, 420 U.S. 162, 178-79, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (trial court required to give proper weight to defendant’s recent attempt at suicide and spouse’s testimony about defendant’s history of disturbed mental state); Pate v. Robinson, supra, 383 U.S. 385-86 (trial court’s decision not to grant competency hearing on its own motion improperly ignored testimony of defendant’s history of “pronounced irrational behavior”); United States v. Auen, 846 F.2d 872, 878 (2d Cir. 1988) (consistent exhibition of “bizarre” behavior prior to and during trial requires further competency hearing); cf. State v. Watson, supra, 198 Conn. 605-606 (unsubstantiated references to psychiatric treatment and medication fail to trigger Pate inquiry). Further, the preliminary hearing revealed nothing to indicate that the defendant was under the influence of potentially mind-altering medication or other drugs that might have undermined his competency to stand trial. See State v. Gonzalez, 205 Conn. 673, 687, 535 A.2d 345 (1987) (trial court properly ordered new competency examination after learning defendant had been given antipsychotic drug previous night). Instead, the defendant supported his motion exclusively with limited instances of his prior “irrational behavior” while meeting with his counsel, his apparent communication and comprehension difficulties during a pretrial conference on the prior day and the brevity of his responses during the canvassing. None of these, either alone or in combination, required the trial court to order a competency hearing.

Although we acknowledge the defendant’s contention that the opinion of the defendant’s counsel “is unquestionably a factor which should be considered,” we note that the trial court need not accept it without question. Drope v. Missouri, supra, 420 U.S. 177 n.13. The trial court reasonably could have afforded little weight to the assertion of the defendant’s counsel about the defendant’s “irrational behavior” during a private conversation because his bare opinion, without any further detail about the date, duration, frequency or actual behavior involved in the conduct, presented only a legal conclusion about the defendant’s competency to stand trial and failed to assert facts from which the trial court could make its own legal determination concerning the defendant’s competency. Compare United States v. Goines, 988 F.2d 750, 782 (7th Cir.), cert. denied, U.S. , 114 S. Ct. 241, 126 L. Ed. 2d 195 (1993) (no abuse of discretion in denying competency hearing where trial court personally observed defendant to be lucid and defense counsel failed to support allegations about defendant’s competency with sufficient facts), with United States v. Nichols, 661 F. Sup. 507, 513 (W.D. Mich. 1987) (granting competency hearing based on defense counsel’s “four-page, detailed affidavit” outlining prior instances of “bizarre” behavior and psychiatric problems). Thus, by not providing a sufficient description or explanation of the nature of the defendant’s purported past irrationality, the observation of the defendant’s counsel provided no reasonable basis for the trial court to disregard its own, in-court observations about the defendant’s then present competency. See State v. Lloyd, supra, 199 Conn. 366-67 (emphasizing defendant must assert grounds of claimed incompetency).

Moreover, the trial court reasonably could have discounted the value of the observations about the defendant’s behavior on the prior day because the defendant failed to make specific factual allegations about how any earlier impairment “may have affected his competence that day.” (Emphasis added.) Id., 367; see also United States v. Burns, 811 F. Sup. 408, 416 (E.D. Wis. 1993) (defendant must show past mental infirmities “presently affect” competence). Consequently, the trial court was entitled to rely on its own observations of the defendant’s responses during the canvassing, in light of his demeanor, tone, attitude and other expressive characteristics. See State v. Watson, supra, 198 Conn. 603-604; State v. Janice, 20 Conn. App. 212, 214, 565 A.2d 553, cert. denied, 213 Conn. 811, 568 A.2d 795 (1989). The trial court was in the best position to assess whether the defendant behaved rationally at that time. See State v. Watson, supra, 606-607 (emphasizing trial court’s ability to test defendant’s present competency).

The record establishes that the trial court considered the relevant evidence, personally evaluated the defendant’s ability to understand the proceedings and reasonably concluded that the defendant was competent to stand trial. We therefore conclude that the trial court acted within its discretion in denying the defendant’s motion for a competency examination.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-60d provides: “assault IN the second degree with a motor vehicle: class d felony, (a) A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes serious physical injury to another person as a consequence of the effect of such liquor or drug.
      “(b) Assault in the second degree with a motor vehicle is a class D felony and the court shall suspend the motor vehicle operator’s license or nonresident operating privilege of any person found guilty under this section for one year.”

       General Statutes § 14-227a provides in relevant part: “operation while UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR. (a) operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The precise questions certified were: (1) “Was the Appellate Court correct in concluding that the statement made by the defendant to police officers Tony Dostanko and John Módica was admissible into evidence?” and (2) “Was the Appellate Court correct in deciding that the trial court properly denied the defendant’s motion for a competency exam under General Statutes § 54-56d?” State v. DesLaurier, 227 Conn. 930, 632 A.2d 705 (1993).
      The first issue, as we frame it herein, differs from the first certified issue in two respects. First, the certified issue improperly assumes that both Tony Dostanko and John Módica are police officers. In fact, Módica is the emergency room physician who was on duty when the defendant was admitted to the hospital. Second, the certified issue addresses the admissibility of the defendant’s statement to Módica. The defendant, however, expressly conceded at oral argument and conceded by implication in his brief to this court that the first issue on certification concerns only the admissibility of the defendant’s statement to Dostanko.

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

       Because the defendant has failed to challenge the admission of his statement as a violation of his rights under article first, § 8, of the state constitution, our analysis of the claimed violation rests on the fifth amendment to the United States constitution. See State v. Joyner, 225 Conn. 450, 458-59 n.4, 625 A.2d 791 (1993); State v. Outlaw, 216 Conn. 492, 501 n.6, 582 A.2d 751 (1990).

       The defendant states in his brief to this court that “the actions of any emergency or hospital worker, either at the scene of the accident or later at the hospital,” are not relevant to the determination of whether he was in custody.

       General Statutes § 54-56d (formerly § 54-40) provides in relevant part: “competency to stand trial, (a) competency required, definition. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
      “(b) presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.
      “(c) 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.
      “(d) EXAMINATION OF DEFENDANT, report. If the court finds that the request for an examination is justified and that, in accordance with procedures established by the judges of the superior court, 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. . . .”

       Because the defendant fails to provide an independent analysis of the state constitutional claim, we limit our review to his federal constitutional claim. See footnote 5.

       “The Court: Mr. DesLaurier, I’m going to ask you a few questions. I want to talk to you a little bit about the motion your attorney just made in your behalf. Can you tell me how far you’ve been in school?
      “The Defendant: Eleventh grade.
      “The Court: Are you able to read?
      “The Defendant: Yes.
      “The Court: Write?
      “The Defendant: Yes.
      “The Court: Have you ever been in any kind of a hospital for psychiatric reasons, anything like that?
      “The Defendant: No.
      “The Court: Do you understand what you’re charged with here in this case? You’re charged with operating under the influence, driving a motor vehicle under the influence of alcohol. Do you understand that charge?
      “The Defendant: Basically.
      “The Court: You’re also charged in another count with assault in the second degree with a motor vehicle and that means that while you were driving a motor vehicle under the influence—and you said you basically understood that charge—that you caused an injury to someone else which resulted in serious physical injury to another person as a result of operating under the influence. That’s the second count. Do you understand that charge?
      “The Defendant: I don’t really understand the consequences or—
      “The Court: The consequences of a conviction mean you could be sentenced on the charge of assault with a motor vehicle to five years in prison. That’s the maximum penalty. That is the consequences if you are convicted of it. And on operating under the influence the maximum as a first offender is six months in jail and a five hundred dollar fine.
      “The Defendant: I don’t understand the plea bargain.
      “The Court: You don’t understand it?
      “The Defendant: No. It’s going on since May.
      “The Court: I don’t want to discuss the plea bargain. Your attorney discussed some offer the State made to you and it’s your right to accept or reject it. Do you understand that?
      “The Defendant: Yes.
      “The Court: So they told you what they’d do if you pled guilty; they’d make a recommendation. Do you understand what the recommendation was?
      “The Defendant: Bits and pieces.
      “The Court: Well I assume they told you they’d recommend a certain period of time or a certain sentence, a certain sentence, a certain recommendation to be made. You heard that, right?
      “The Defendant: Yes, I heard it, yes.
      “The Court: What part don’t you understand. What part is difficult for you to understand. Since you understand the charges, I just told you the maximum is five and a half years—you understand that, don’t you?
      “The Defendant: Yes.
      “The Court: What they have told you is they made a plea bargain an offer if you wanted to accept it, they’d recommend less sentence than that I assume. Is that right?
      “The Defendant: That’s what they’ve been doing, but I don’t understand. I can understand what you’re telling me.
      “The Court: Well that’s all I want to know, is that you understand what we’re telling you. You can accept it or reject it. That’s your decision. You talked to your lawyer about the case I assume. You have had discussions with your lawyer about it.”
      The trial court stated: “Don’t tell me what they were, but I assume that your lawyer talked to you about the evidence that’s going to be—basically what’s going to go on here. Do you understand that?
      “The Defendant: I understand what you’re telling me about the charges, but I don’t understand why it’s been taking so long and plea bargaining. I can understand you’re going to give me five years.
      “The Court: I’m saying what the maximum is.
      “The Defendant: You’re not sure.
      “The Court: Well that’s the maximum. I’m only telling you the maximum.
      “The Defendant: I can understand the five years. You tell me max five years.”

       The trial court stated: “Yes. Okay. I’m not satisfied that there has been an adequate showing that a 54-56d examination is appropriate. He seems to understand the charges. He understands the penalty that he’s facing. He understands there was a plea bargain. He rejects the plea bargain apparently which, of course, is his right under our procedure. And I think as far as I can determine he is able to proceed with the case. The request for a 54-56d examination is denied.” We note that although the defendant now cites the canvass as evidence of his incompetency at trial, he never pointed the trial court to any of his responses to its questions as a basis for his challenge; nor did he contradict the trial court’s characterization thereof.

       We do not mean to suggest that the opinion of a defense attorney deserves no weight unless it is accompanied by some minimum amount of specific factual support. We only emphasize that the consideration to be afforded to a defense attorney’s opinion of his client’s competency, like all evidence of a defendant’s competency to stand trial, necessarily increases with the greater number of facts presented from which the trial court may draw its own reasonable conclusion.

       While we emphasize that in deciding whether to order a General Statutes § 54-56d competency hearing, a trial court must focus on a defendant’s present competency to stand trial and that evidence, including that of a defendant’s past or current behavior, is relevant only to the extent that it bears on that present competency, we also must underscore that because competency focuses on a particular point in time, a defendant who is found to be competent at the outset of trial later may become incompetent. For that reason, 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. General Statutes § 54-56d. Thus, whenever a later motion alleges facts that sufficiently indicate that the defendant may be incompetent, the trial court must revisit the issue of competency and consider all relevant evidence, including evidence presented during any earlier motions for a competency hearing. In this case, no motions were filed subsequent to the one presently in issue.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Shawn Robinson
    (14846)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued May 10
    decision released August 9, 1994

      Rita M. Shair, assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Paul J. Ferencek and Mary Elizabeth Baron, assistant state’s attorneys, for the appellant (state).

      Susan M. Hankins, assistant public defender, for the appellee (defendant).
   Norcott, J.

This appeal concerns issues arising out of the criminal trial and sentencing of the defendant, Shawn Robinson. The principal issue presented is whether the defendant was prejudiced by the trial court’s violation of its own witness sequestration order issued pursuant to General Statutes § 54-85a. In accordance with our grant of certification, the state appeals from the Appellate Court’s determination that the trial court’s breach of the sequestration order denied the defendant a fair trial.

The defendant was charged with one count of possession of a weapon or dangerous instrument in a correctional facility in violation of General Statutes § 53a-174a (a), and with two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (5).

On September 12, 1991, prior to the commencement of trial, the trial court granted the defendant’s motion in limine to sequester all witnesses and to require all correction officers to testify in civilian clothing. The trial commenced on September 16, 1991, before a six person jury.

The state’s case consisted of the testimony of eight correction officers. They testified that on January 11, 1990, the defendant, while an inmate at the Connecticut correctional center in New Haven, had attacked a group of correction officers who were attempting to place restraints on him. According to the officers’ testimony, the defendant lunged at them with a shank that had been fashioned from the metal arch support from a prison issued inmate’s shoe. Before the defendant was subdued with mace, three officers were injured. One officer required eleven stitches in his arm.

The defendant testified to a different version of the facts. He testified that the correction officers had been the aggressors and that they had attacked him in retribution for an incident that had occurred between the defendant and another correction officer the previous day. The defendant asserted that the charges had been initiated as part of an institutional coverup. The defendant testified that on the morning of January 11, he had been summoned to the captain’s office to discuss the previous day’s events. The defendant testified that he had asked Deputy Warden William Marcinczyk to take photographs of him to document the injuries he had received as a result of the altercation on the previous day. The defendant further testified that Marcinczyk had taken two polaroid photographs of him and that the defendant had retained one of them for “safekeeping.” The defendant testified that he had given this photograph to his cousin approximately one-half hour later. The defendant also testified that he had then been approached by a trio of officers who had demanded that the defendant return the photograph. According to the defendant, as he had turned out his pockets to show them that he did not have the photograph, the officers had attacked him and lie had been beaten, maced and dragged to isolation. The defendant stated that later that day he had been transferred back to Somers where William King, a correction officer, took five photographs of him shortly after he arrived. The defendant maintained that he had made copies of these photographs, had given one to his mother, another to his father, and had kept one for himself. He testified that his copy of the photograph had been taken from his cell when it was searched by the correction officers. The defendant also testified that he had not had access to a camera. Finally, the defendant emphatically denied possessing the shank and assaulting the officers.

The defendant also called King and Mark Murray, another correction officer, to testify to the defendant’s physical condition when he had arrived at Somers on the evening of January 11. King testified that he had taken four photographs of the defendant in order to document the defendant’s condition, which he described as a “superficial laceration on his lips.” These photographs were subsequently lost. Similarly, Murray testified that when the defendant had arrived at Somers his “lips were swollen. The side of his face on both sides was swollen. There was some blood on the front of his shirt.”

Both prior to and following their testimony, Murray and King remained in the courtroom guarding the defendant. Although the defendant repeatedly objected to the presence of these subpoenaed witnesses in violation of the sequestration order, the court refused to exclude the officers from the courtroom.

Marcinczyk also testified during the defendant’s case. Marcinczyk confirmed that the defendant had filed a complaint with him on the morning of January 11. Mar-cinczyk also testified that at the defendant’s request, he had taken photographs of the defendant. These photographs were subsequently lost. Further, the defendant called his father, Diago Robinson, to testify. Robinson, also an inmate at Somers, maintained that he had been in King’s office when the defendant was photographed, and that the defendant had given him a copy of the photographs for safekeeping. The defendant introduced into evidence a copy of the photographs taken by King. Robinson also attested to the defendant’s condition when he had arrived at Somers, recounting that the defendant’s eye was swollen nearly shut, his lip was swollen, he was limping and he had bruises on his face.

On rebuttal, the state called King, who had been in the courtroom during the presentation of the defendant’s entire case. The defendant objected on the ground that allowing King to take the stand would violate the sequestration order. The objection was overruled. King’s rebuttal testimony directly contradicted the salient features of the testimony given by the defendant’s witnesses. King testified that he had been with the defendant from the time he had arrived at Somers until the time he was placed in isolation. King denied that the defendant had been in contact with his father, or any other inmate, on that evening. King also stated that he had noticed no other injury to the defendant aside from a lip abrasion. Finally, King testified that Somers inmates generally had access to cameras and photocopy machines, although he had no knowledge as to whether the defendant had been given access to either.

The jury returned a verdict of guilty of possession of a weapon or dangerous instrument in a correctional facility, and a mistrial was declared as to the assault charges. The trial court sentenced the defendant to a term of twenty years imprisonment, to run consecutively with the defendant’s sixty-two year sentence for prior convictions.

The defendant appealed from the judgment of conviction. The Appellate Court held that the defendant was prejudiced by the trial court’s failure to enforce its sequestration order by permitting a subpoenaed witness to remain in the court throughout the trial and by allowing that witness to be recalled by the state on rebuttal. In the Appellate Court’s view, the sequestration violation was likely to have affected the jury’s verdict in that it “went to the heart of the defense . . . [and King’s] testimony directly contradicted that of the defense witnesses.” State v. Robinson, 32 Conn. App. 448, 458, 630 A.2d 87 (1993). The judgment was reversed by the Appellate Court and the case was remanded for a new trial. Id. We granted the state certification to appeal this issue. We affirm the judgment of the Appellate Court.

I

The state claims that the Appellate Court improperly determined that the trial court’s decision to allow the rebuttal testimony of a correction officer who had been guarding the defendant during trial was so prejudicial as to require a new trial. Specifically, the state argues that: (1) the defendant was not harmed by the violation of the sequestration order because King did not tailor his testimony to conform to the testimony of other witnesses; (2) any harm caused by the violation of the sequestration order could have been or was mitigated through cross-examination, jury instructions and closing arguments; (3) King’s testimony related solely to the defendant’s claim of self-defense on the dismissed assault charges and did not pertain to the defendant’s conviction on the possession charge; and (4) the violation of the sequestration order was justified because the defendant posed a security risk. We disagree.

The state concedes, as it must, that the trial court violated the sequestration order when it allowed King to take the stand. See State v. Stovall, 199 Conn. 62, 68, 505 A.2d 708 (1986); State v. Sullivan, 11 Conn. App. 80, 84, 525 A.2d 1353 (1987). The right to have witnesses sequestered is an important right that facilitates the truth-seeking and fact-finding functions of a trial. Geders v. United States, 425 U.S. 80, 87, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976). In Connecticut, the granting of a sequestration order in criminal cases is not discretionary and can be invoked by either party. General Statutes § 54-85a; see footnote 1; see also State v. Paolella, 211 Conn. 672, 681, 561 A.2d 111 (1989); State v. Soltes, 20 Conn. App. 342, 346, 566 A.2d 1374 (1989), appeal dismissed, 215 Conn. 614, 577 A.2d 717 (1990); State v. Arroyo, 13 Conn. App. 687, 693, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988). Practice Book § 876 provides: “The judicial authority upon motion of the prosecuting authority or of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which he is not testifying.” (Emphasis added.)

The state, however, argues that the violation did not prejudice the defendant. A violation of a sequestration order does not automatically require a new trial. Holder v. United States, 150 U.S. 91, 92, 14 S. Ct. 10, 37 L. Ed. 1010 (1893); State v. Scott, 16 Conn. App. 172, 182, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988). The controlling consideration is whether the defendant has been prejudiced by the violation. State v. Stovall, supra, 199 Conn. 69. The burden rests on the party requesting the sequestration to show that the violation was prejudicial. State v. Paolella, supra, 211 Conn. 680-81; State v. Silveira, 198 Conn. 454, 479, 503 A.2d 599 (1986); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). If the prejudice resulting from the violation is likely to have affected the jury’s verdict, a new trial must be ordered. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982).

A

The state first contends that King’s testimony was not prejudicial because it did not frustrate the purposes of sequestration. The state argues that the sole purpose of sequestration is to prevent a witness from corroborating testimony, not to preclude testimony such as King’s, which merely contradicts the testimony of the other witnesses. We are not persuaded by the state’s argument.

Sequestration serves a broad purpose. It is a procedural device that serves to prevent witnesses from tailoring their testimony to that of earlier witnesses; it aids in detecting testimony that is less than candid and assures that witnesses testify on the basis of their own knowledge. Geders v. United States, supra, 425 U.S. 87; see 6 J. Wigmore, Evidence (Chadbourn Rev. 1976) § 1838; see also State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1962). In essence, it helps to ensure that the trial is fair. State v. Paolella, supra, 211 Conn. 680-81; State v. Stovall, supra, 199 Conn. 69; State v. Scott, supra, 16 Conn. App. 182; C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 7.29. The mandate of § 54-85a is clear; it does not distinguish between categories of testimony. See State v. Cavell, 34 Conn. App. 276, 641 A.2d 426 (1994) (upholding striking of testimony of medical expert who had reviewed testimony of prior witness in violation of sequestration order); State v. Soltes, supra, 20 Conn. App. 346-47 (sequestration order applies to all witnesses including expert witnesses). Hence, the distinction that the state asks us to make between contradictory and corroborating testimony is a hollow one.

Our inquiry, however, does not end here. Not all testimony that is tainted by a violation of a sequestration order is necessarily prejudicial. Rather, “[a]n inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted.” State v. Scott, supra, 16 Conn. App. 182. Our analysis involves two steps. First, we must determine whether King’s testimony was in any way tailored to the testimony he had heard in violation of the sequestration order; and second, if it was tailored, whether that testimony is likely to have affected the jury’s verdict.

It is probable, in the present case, that King’s testimony was tailored to that of the other witnesses. First, King testified after having listened to the testimony of every one of the defendant’s witnesses. His testimony was critical in that it rebutted two important aspects of the defense: (1) that the defendant’s injury had not been limited to a bruise on his lip; and (2) that the defendant had lacked access to cameras and photocopy machines. Second, the prosecution of the defendant involved an assault on King’s fellow correction officers, giving King motive to mold his testimony. Third, it is likely that King’s testimony was influenced by the testimony he heard. Testimony may “be affected in subtle, inadvertent ways by exposure to the differing views of a colleague.” (Emphasis added.) State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982) (giving state’s expert transcript of testimony of defendant’s expert testimony, in violation of sequestration order, was harmful). A “fact finder’s appreciation for and determination of relevant facts must remain unsullied by the potential for subtle, yet significantly distorted modification of witness testimony.” United States v. Bramlet, 820 F.2d 851, 855 (7th Cir.), cert. denied, 484 U.S. 861, 108 S. Ct. 175, 98 L. Ed. 2d 129 (1987). Hence, King’s exposure to the testimony of other witnesses likely compromised both the reliability and integrity of his testimony. See Fendler v. Goldsmith, 728 F.2d 1181, 1186 (9th Cir. 1983); State v. Soltes, supra, 20 Conn App. 346-47.

In addition, it is likely that the jury found King’s testimony to be highly reliable and credible. The harm resulting from King’s testimony was exacerbated by his status as a uniformed correction officer entrusted with guarding the defendant during the trial. See State v. Woolcock, 201 Conn. 605, 617-18, 518 A.2d 1377 (1986). His credibility with the jury may have been enhanced by his position as a captain. In fact, his skills and training as an officer were highly touted to the jury by both the state’s and the defendant’s counsel. Accordingly, the jury may have put great weight on the substance of his testimony. State v. Smith, 222 Conn. 1, 27-28, 608 A.2d 63, cert. denied, U.S. , 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992); State v. Lewis, 220 Conn. 602, 600 A.2d 1330 (1991); see also State v. Hardison, 16 Conn. App. 142, 145, 546 A.2d 968 (1988) (“permissible for the jury to consider [the police officers’] special training and experience with regard to their ability to observe, remember and record events”).

We determine that King’s exposure to the defendant’s case tainted his testimony, prejudiced the defendant, and was likely to have affected the jury’s verdict. That harm was compounded by the fact that King was a correction officer, assigned to guard the defendant during trial. We agree with the Appellate Court that the trial court improperly allowed a subpoenaed correction officer to guard the defendant during trial and later to assume the stand in rebuttal in violation of the sequestration order.

B

The state next argues that the violation was harmless because the defendant had an adequate opportunity to neutralize any prejudicial effects of King’s testimony through cross-examination, jury instructions and closing arguments. In our view, such safeguards could not and did not adequately counter the effect of the violation of the sequestration order because of the extreme nature of the prejudice caused by King’s rebuttal testimony.

The defendant’s cross-examination of King was ineffectual because there was no evidentiary foundation by which to gauge the accuracy of King’s testimony. King had not given pretrial testimony relating to his rebuttal testimony. Cf. State v. Sullivan, supra, 11 Conn. App. 85 (no harm resulted from violation of sequestration order where mother testified after hearing her nine year old daughter testify because mother’s testimony was consistent with her pretrial hearing testimony). Once a witness has heard others testify, it is much more difficult for a cross-examiner to expose fabrication, collusion, inconsistencies or inaccuracies. Perry v. Leeke, 488 U.S. 272, 281, 109 S. Ct. 594, 102 L. Ed. 2d 624 (1989). Because the defendant had no basis on which to impeach King’s testimony, he was unable to conduct an effective cross-examination of King.

The state also argues that the defendant should have mitigated the impact of the harm through requests for jury instructions and through his own closing argument. The defendant did in fact request the trial court to instruct the jury on the credibility of the witnesses who had testified in violation of the sequestration order. This request was denied. Although it is true that “[i]f curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided”; (internal quotation marks omitted) State v. Wooten, 227 Conn. 677, 694, 631 A.2d 271 (1993); a party is not under a duty to request jury instructions or to address a violation of a sequestration order in closing arguments once he has properly taken an exception. Once an objection has been reserved, no further action is necessary because the trial court has been alerted to the “purported error while there is time to correct it without ordering a retrial.” State v. Christiano, 228 Conn. 456, 464, 637 A.2d 382 (1994); State v. Rothen-berg, 195 Conn. 253, 263, 487 A.2d 545 (1985). A party need not repeatedly raise an objection at closing argument or by requests for jury instructions.

c

The state also argues that King’s testimony did not relate to the charges of which the defendant was convicted and therefore was not prejudicial. Rather, the state asserts that King’s testimony related only to the defendant’s self-defense claim on the assault charges, and not to the possession of a dangerous instrument charge. The state further contends that, because a mistrial was declared on the assault charges, the defendant was not prejudiced by King’s testimony. We disagree.

The defendant contested every element of each charge brought against him on the ground that he was framed by the correction officers. Most importantly, the defendant denied possessing the shank and attacking the officer. King’s rebuttal testimony directly undermined the defendant’s version of events and undermined the credibility of every one of the defendant’s witnesses. First, King testified that no one had an opportunity to see the defendant at the time of his arrival at Somers and, therefore, directly disputed the contrary testimony of the defendant’s father. In addition, King disputed Murray’s assessment of the defendant’s physical condition. Finally, although King admitted taking the photographs that documented the defendant’s condition, King’s testimony that inmates had access to cameras substantially diminished the evidentiary value of the photocopy by supporting the inference suggested by the state that the defendant had fabricated the copy of the photographs. King’s testimony, therefore, went beyond contesting the defendant’s claim of self-defense with respect to the assault charge.

D

The state further argues that the trial court properly exercised its discretion by requiring King’s presence in the courtroom because the defendant posed a security risk. Although it is well established that a trial court has the discretion to prevent trial disruptions and to ensure courtroom security; Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982); State v. Williams, 195 Conn. 1, 7, 485 A.2d 570 (1985); that does not mean that special circumstances may not outweigh the personnel assignment decision of the department of correction. Therefore, while the circumstances may have dictated the attendance of a certain number of correction officers, King himself was not vital. See State v. Woolcock, supra, 201 Conn. 617 (presence of identifiable security officers in courtroom is not inherently prejudicial, but circumstances should be evaluated on case-by-case basis). In fact, the record suggests that the correction officers could have made alternate arrangements, such as switching assignments with other Somers officers also present at the courthouse. The security concerns easily could have been alleviated, in compliance with the sequestration order, without any undue strain on the correctional system. Accordingly, we are not persuaded by the state’s claim.

II

The second issue raised in this appeal relates to the defendant’s request for a psychiatric examination at the Whiting Forensic Institute, pursuant to General Statutes § 17a-566. The state claims that the Appellate Court improperly concluded that the trial court improperly failed to exercise its discretion when it denied the defendant’s request for a psychiatric examination. The Appellate Court determined that the trial court’s denial was based on the incorrect conclusion that it could not order a § 17a-566 psychiatric examination because at the time of trial the defendant was a sentenced prisoner. Consequently, the Appellate Court concluded that the trial court failed to exercise its discretion. The Appellate Court considered this issue as one “likely to affect the proceedings on remand.” State v. Robinson, supra, 32 Conn. App. 459 n.8.

It is our view that this is not such an issue and that it was therefore improper for the Appellate Court to consider it. This issue will not affect the proceedings on remand unless: (1) the defendant is convicted; (2) the defendant requests a psychiatric examination pursuant to § 17a-566; and (3) the trial court denies the request for the same reasons as did the trial court in the present case. We conclude these three issues are not likely to occur on retrial. Accordingly, we decline to address the merits of the state’s claim.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 54-85a provides: “sequestering of witnesses in criminal prosecution. In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.”

       We granted the state’s petition for certification to appeal, State v. Robinson, 227 Conn. 928, 632 A.2d 706 (1994), limited to the following issues: (1) whether the defendant was prejudiced by the trial court’s decision to allow a correction officer, who was guarding the defendant during the trial and was privy to the testimony of other witnesses, to testify in violation of a sequestration order; and (2) whether the trial court properly exercised its discretion when it denied the defendant’s request for a psychological examination at the Whiting Forensic Institute, pursuant to General Statutes § 17a-566.

       General Statutes § 53a-174a provides: “POSSESSION OF weapon of dangerous INSTRUMENT IN CORRECTIONAL INSTITUTION: CLASS B FELONY, (a) A person is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable.
      “(b) Possession of a weapon or dangerous instrument in a correctional institution is a class B felony.”

       General Statutes § 53a-60 (a) (5) provides: “ASSAULT IN THE second degree: class D FELONY, (a) A person is guilty of assault in the second degree when ... (5) he is in the custody of the commissioner of correction, confined in any institution or facility of the department of correction, or is a parolee from a correctional institution and with intent to cause physical injury to an employee of the department of correction or an employee or member of the board of parole, he causes physical injury to such employee or member.”

       The relevant portion of the sequestration order provides: “That the prosecuting authority sequester each of its witnesses at trial, warn each of its witnesses not to discuss with any other witness the contents of his/her testimony, and take reasonable steps necessary to insure that the contents of witnesses’ testimony or prospective testimony is not otherwise exchanged or compared among witnesses.”

       For a full recitation of the facts, see the Appellate Court’s decision. State v. Robinson, 32 Conn. App. 448, 449-51, 630 A.2d 87 (1993).

         At the conclusion of the state’s case, the defendant had subpoenaed the two correction officers, Murray and King, to testify. The state moved to preclude Murray as a witness because he had been present in court in violation of the sequestration order. This objection was overruled. The defendant then moved to exclude Murray from the courtroom because it was prejudicial to have a witness assume the role of guard after testifying. The court denied this request, stating that the jury had already viewed Murray in his capacity, as a guard and that his removal would be an undue interference with security.

       The transcript does not record the exact dates on which Murray and King were present in the courtroom. It appears that Murray was present for three days of testimony, hearing the end of the state’s case and the entirety of the defendant’s case. King was present on the first day of the defendant’s case as a witness and then was present on the two remaining days of the defendant’s case guarding the defendant.

       On September 26, 1991, the jury returned a verdict of guilty as to all counts. The defendant then asked that the jury be polled individually. One juror, Lawanda Towles, when polled changed her vote to “not guilty” on the assault charges. The jury was excused for further deliberations, which proved to be futile. The court declared a mistrial as to these assault charges. The charges were dismissed on October 18, 1991. The state has chosen not to retry the defendant on these charges.

       The defendant argued on appeal that he was prejudiced by the court’s violation of the sequestration order on three separate occasions: (1) by Murray’s presence in court during King’s defense testimony; (2) by the presence of both Murray and King after their testimony and during the remainder of the defendant’s case; and (3) by King’s rebuttal testimony. The Appellate Court concluded that the defendant was prejudiced only by the third occurrence, King’s rebuttal testimony. Hence, we limit our review to this claim.

       Because we conclude that a new trial is required, we do not address the alternative grounds put forth by the defendant that: (1) the trial court improperly granted the state’s motion in limine to preclude testimony relating to prior incidents between the defendant and the correction officers that purportedly showed that the officers were the aggressors and demonstrated motive and bias on the part of the state’s witnesses; and (2) the trial court improperly denied the defendant’s requests to examine jurors and to declare a mistrial because the jury was allegedly exposed to inflammatory media coverage during trial.

       The state relies on State v. Paolella, supra, 211 Conn. 680-81, for the proposition that the violation of a sequestration order is not necessarily prejudicial. We agree that not all sequestration violations are prejudicial. In Paolella, the witness testified before violating the sequestration order and did not prejudice the defendant because the witness was unable to tailor her testimony. Specifically, the court allowed the complainant to remain in the courtroom during the testimony of her minor children after she had testified, in violation of the sequestration order. This court upheld the ruling because “at the time the children took the stand, the complainant had already testified and, therefore, she was unable to tailor her testimony to correspond to that of her children. Since the purpose of the sequestration order was not undermined by the complainant’s presence in the courtroom during the children’s testimony, the trial court’s decision to exempt her from its order was not in any way prejudicial to the defendant in that regard.” Id., 681; see also State v. Stovall, supra, 199 Conn. 66-67 (witness’ presence during counsel’s legal arguments regarding an alleged inconsistency in her testimony was not prejudicial).

       Many courts have held that the violation of a sequestration order does not prejudice the defendant when the testimony is rebuttal. See, e.g., United States v. Shurn, 849 F.2d 1090, 1094 (8th Cir. 1988); United States v. Bramlet, 820 F.2d 851, 855 (7th Cir.), cert. denied, 484 U.S. 861, 108 S. Ct. 175, 98 L. Ed. 2d 129 (1987). These courts have held that, unlike testimony of fact witnesses, testimony of rebuttal witnesses is directed toward impeaching the prior testimony of opposing witnesses, and thereby serves a totally different function.
      In the current case, although King was called as a rebuttal witness, Ms testimony was neither merely cumulative nor “simply impeaching.” United States v. Shurn, supra, 849 F.2d 1094. Rather, his testimony disclosed new facts that were not already in evidence, including the fact that the defendant had access to cameras and photocopy machines. King’s “credibility was a crucial element in the government’s case . . . .” United States v. Nazzaro, 472 F.2d 302, 308-309 (2d Cir. 1973).

       The applicable request regarding the jury charge is as follows:
      “Mr. Rosenthal: Your Honor, with respect to these claims, in addition to the closing argument portion of the claims, there is also a concern I have that just the nature of the way in which the credibility of corrections officer was pitched against, and credibility of corrections officers was bolstered by their background, et cetera, once again reinforces the concern we expressed in our due process claim as to the inappropriateness of corrections officers in uniform in the courtroom taking the stand, violating sequestration order and having the number of corrections officers and sheriffs that there were in the room. All of those things that I know are already on the record, I would claim the summation have reinforced the problems that we have previously claimed and would ask Your Honor to reconsider Your Honor’s ruling in that regard.
      “The Court: All right. Your remarks are noted. I don’t intend to say anything concerning arguments during my charge, and to the extent that you feel I should, may I suggest that you do that at the conclusion of the charge in the form of an exception to the charge. I think that would be probably the best way to preserve it.”

       For example:
      “The Court: Is there any reason, I mean do you know whether you are going to be assigned to this case next Monday or not?
      “Correction Officer Murray: I believe so. I am assigned to this case, sir, Monday. The schedules were made up. I was told I was going to be put on it as an assignment. The schedules are probably made up already for Saturday, Sunday and Monday and possibly Tuesday.
      “You know, it could have been arranged. If I didn’t get the subpoena so late yesterday, I could have gone over it with my supervisors, and we could have switched around.
      “The Court: Can you switch around for Monday?
      “Correction Officer Murray: I could try. Yes, sir.
      “The Court: Why don’t you try, and if you can switch around so that you are not assigned to this case, would you come back in civilian clothes?
      “Correction Officer Murray: Or if I am assigned to a case in New Haven, could I bring civilian clothes?
      “The Court: Bring a change of clothes so that when you testify here—
      “Correction Officer Murray: I will do that. It is so minute to cause such a problem.
      “The Court: Well, we do our best to be fair to everybody, and that’s what I am trying to do, to cause the minimum of inconvenience to everybody. That’s why I am asking that you do your best to see if you can get things changed for Monday, and if you can’t, we will deal with it, but I am going to ask that you do that.”

       General Statutes § 17a-566 provides in relevant part: “CERTAIN CONVICTED PERSONS TO BE EXAMINED. REPORT AND RECOMMENDATION, (a) Except as provided in section 17a-574 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers . . . may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. ...”

         Our decision not to review the state’s claim is purely the result of our determination that it is not an issue that is likely to arise on remand, and does not express approval of the Appellate Court’s disposition of the claim.


author: Peters, C. J. Callahan, J., Berdon, J.,

text:
    Floyd Simms v. Warden, State Prison
    (14924)
    Peters, C. J., Callahan, Borden, Berdon and Lavery, Js.
    Argued June 1
    decision released August 9, 1994

      Meryl Anne Spat, with whom was Louis S. Avitabile, special public defender, for the appellant (petitioner).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Jacqueline J. Footman, assistant state’s attorney, and, on the brief, Patricia A. Swords, state’s attorney, for the appellee (respondent).
   Peters, C. J.

The dispositive issue in this appeal from the trial court’s denial of a writ of habeas corpus is whether the habeas court abused its discretion by denying the petitioner’s request for certification to appeal. Earlier this year, in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I), we held that an appeal', rather than a writ of error, is the proper procedure for appellate review of the denial of a request for certification to appeal the denial of a writ of habeas corpus. Invoking our appellate jurisdiction under General Statutes § 52-265a, we thereafter permitted a belated appeal to allow the petitioner, Floyd Simms, to present his argument that the habeas court had improperly denied his request for certification. We affirm the judgment of the habeas court.

The procedural history of this case is recounted in Simms I, supra, 229 Conn. 179. The petitioner filed an amended petition for a writ of habeas corpus to challenge the legality of his detention by the defendant, the warden of the Connecticut correctional institution at Somers (state). His detention results from his 1983 conviction of accessory to assault of a person sixty years of age or older in the first degree pursuant to General Statutes §§ 53a-59 (a) (3), 53a-59a and 53a-8, and of robbery in the second degree pursuant to General Statutes § 53a-135 (a) (1). We affirmed his conviction on direct appeal. State v. Simms, 211 Conn. 1, 557 A.2d 914, cert. denied, 493 U.S. 843, 110 S. Ct. 133, 107 L. Ed. 2d 93 (1989).

In his petition for a writ of habeas corpus, the petitioner alleges that his conviction should be set aside, or that he should be resentenced, on one of three grounds: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) violation of his rights to due process under the federal and state constitutions. Each of the counts in the petition is premised on the petitioner’s underlying contention that the trial judge, Corrigan,should have recused himself from presiding at the petitioner’s jury trial. The petitioner contends that recusal was necessary largely because Judge Corrigan had presided over a previous jury trial that had resulted in the petitioner’s conviction of the crime of felony murder and, at the sentencing for that crime, had commented on the petitioner’s lack of credibility. Simms I, supra, 229 Conn. 179 n.3.

The habeas court resolved all three counts of the habeas petition against the petitioner. At the outset of the evidentiary hearing, the habeas court dismissed the third count, in which the petitioner claimed that the trial judge’s failure to recuse himself from presiding over the petitioner’s criminal trial had deprived the petitioner of his constitutional right to due process. The habeas court dismissed this count because it contained no allegations that might excuse the petitioner’s failure to raise this issue in his direct appeal. After the conclusion of the evidentiary hearing and the filing of briefs, the habeas court denied, on their merits, the remaining counts alleging ineffective assistance of trial and appellate counsel. The habeas court also denied the petitioner’s subsequent request, pursuant to General Statutes § 52-470 (b), for certification to appeal. The petitioner has appealed from the trial court’s denial of certification and its adverse disposition on each of the counts of his petition.

In Simms I, in directing a habeas corpus petitioner to pursue an appeal rather than a writ of error in order to challenge an adverse judgment of the habeas court, we suggested that such an appeal requires the petitioner to make a two part showing. Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court’s permission. State v. Bergin, 214 Conn. 657, 660-61, 574 A.2d 164 (1990); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 311, 521 A.2d 1017 (1987); State v. Avcollie, 174 Conn. 100, 110-11, 384 A.2d 315 (1977). If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Simms I, supra, 229 Conn. 186-87. We adopt this two part test as our holding in this case and conclude that the habeas court did not abuse its discretion in denying the petitioner’s request for certification to appeal.

I

Before we undertake a review of the petitioner’s appeal to determine whether he has met his threshold burden of demonstrating an abuse of discretion in the denial of his certification to appeal, we must clarify two antecedent procedural issues. The first is a question of characterization: in a habeas corpus case, does a decision on the issue of abuse of discretion implicate the jurisdiction of the appellate tribunal? The second is a question of standards: in a habeas corpus case, is a decision on the issue of abuse of discretion governed by articulable criteria, and, if so, what should these criteria be?

A

The grant of a qualified right to appeal in § 52-470 (b) is the source of the jurisdictional issue that we must decide. That subsection provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.” The question raised by § 52-470 (b) is whether the language before “[n]o appeal . . . may be taken” was intended by the legislature as a limitation on the jurisdiction of the appellate tribunal or as a limitation on the scope of the review by the appellate tribunal.

In Simms I, supra, 229 Conn. 187-89, we assumed that § 52-470 (b) imposed jurisdictional constraints upon an appellate tribunal because we have so held in cases interpreting General Statutes § 54-96, which authorizes the state, with the permission of the trial court, to appeal questions of law in criminal cases. In appeals arising under the latter statute, a denial of permission to the state to appeal, if that denial is not an abuse of discretion, deprives the appellate tribunal of subject matter jurisdiction. State v. Bergin, supra, 214 Conn. 660-63; State v. S & R Sanitation Services, Inc., supra, 202 Conn. 313; State v. Audet, 170 Conn. 337, 340, 365 A.2d 1082 (1976). Under § 54-96, we have held permission to appeal to be jurisdictional because, at common law, the state had no right to appeal in criminal cases. State v. Falzone, 171 Conn. 417, 417-18, 370 A.2d 988 (1976); State v. Audet, supra, 340-42; State v. Brown, 16 Conn. 54, 58-59 (1843).

It is plausible to draw an analogy from § 54-96 to § 52-470 (b) because, as we explained in Carpenter v. Meachum, 229 Conn. 193, 200, 640 A.2d 591 (1994), at common law, a petitioner had no right to appeal the denial of a writ of habeas corpus. Our decision in Carpenter would presumably permit the legislature to impose conditions on appellate review that, if not met, would deprive an appellate tribunal of jurisdiction.

On further reflection, however, we are persuaded that the question before us is not one of legislative power but of legislative intent. See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). When the legislature enacted § 54-96, it coupled the grant of authority for the state to appeal with the necessity for the state to obtain permission to appeal. By contrast, when the legislature enacted § 52-470 (b), it limited a statutory right to appeal that had existed, unconditionally, since 1882. Carpenter v. Meachum, supra, 229 Conn. 202; Iovieno v. Commissioner of Correction, 222 Conn. 254, 259-60, 608 A.2d 1174 (1992). The issue in this case, therefore, is whether the legislature, in amending § 52-470, intended to impose a jurisdictional limitation on appellate jurisdiction or intended merely to limit the scope of appellate review. In light of the significant role of the writ of habeas corpus in our jurisprudence; Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984); and the strong presumption in favor of appellate jurisdiction; Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 854, 633 A.2d 305 (1993); Ambroise v. William Raveis Real Estate, Inc., supra, 765; we conclude that the legislature intended the certification requirement only to define the scope of our review and not to limit the jurisdiction of the appellate tribunal.

B

In Simms I, we proposed that, as a prerequisite to plenary appellate review of the merits of the dismissal of a habeas corpus petition, a petitioner who is denied a timely request for certification to appeal must demonstrate that the denial of certification was an abuse of discretion. Adhering to that construction of the substantive import of § 52-470 (b), we now consider the standards by which such a possible abuse of discretion should be measured.

In cases arising under § 54-96, we have inquired, on appeal, whether the record demonstrates that the denial of permission to the state to appeal constituted a clear and extreme abuse of discretion or resulted in an apparent injustice. State v. Bergin, supra, 214 Conn. 660-61; State v. S & R Sanitation Services, Inc., supra, 202 Conn. 311; State v. Avcollie, supra, 174 Conn. 110-11. That standard is correct but requires amplification in the context of habeas corpus appeals.

We may usefully incorporate, by analogy, the criteria adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), in its analysis of the certificate of probable cause to appeal that is part of the federal statute governing habeas corpus. See 28 U.S.C. § 2253; see generally 2 J. Liebman, Federal Habeas Corpus Practice and Procedure (1989) § 30.4; L. Yackle, Postconviction Remedies (1981) § 160. The court held in Lozada that, in order to obtain a certificate of probable cause to appeal, a habeas petitioner must make a substantial showing that he has been denied a federal constitutional right. Lozada v. Deeds, supra, 431. A petitioner satisfies that burden by demonstrating: “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis in original; internal quotation marks omitted.) Id., 432; Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).

Accordingly, we hold that, in an appeal under § 52-470 (b), a petitioner will establish a clear abuse of discretion in the denial of a timely request for certification to appeal if he can demonstrate the existence of one of the Lozada criteria described above. In enacting § 52-470 (b), the legislature intended to discourage frivolous habeas appeals. Iovieno v. Commissioner of Correction, supra, 222 Conn. 259-61. A habeas appeal that satisfies one of the Lozada criteria is not frivolous.

II

We turn now to decide whether the petitioner has established a clear abuse of discretion in the habeas court’s denial of his request for certification. We must determine whether a certifiable issue exists, by Lozada criteria, either with respect to the habeas court’s dismissal of the third count of the habeas petition or with respect to the habeas court’s denial of the relief requested in the first and second counts of the petition. We conclude that the habeas court’s denial of certification was not an abuse of its discretion.

No further appellate review was warranted with respect to the habeas court’s dismissal of the petitioner’s claim, in the third count of his petition, that the trial judge’s failure to recuse himself because of his prior judicial contacts with the petitioner violated the petitioner’s right to due process. Under well established case law, reasonable jurists could not differ that such a claim can be raised by habeas corpus only by alleging some excuse for the failure to have pursued it on direct appeal. Jackson v. Commissioner of Correction, 227 Conn. 124, 129-32, 629 A.2d 413 (1993); Morin v. Manson, 192 Conn. 576, 580, 472 A.2d 1278 (1984); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979). The petition contains no such allegation. The petitioner’s testimony that he asked his counsel to pursue the issue may be relevant to his claim of ineffective assistance of counsel, but it does not address the issue of deliberate bypass of the process of direct appeal or of cause and prejudice for failure to present such an issue in the direct appeal. “[Ajttorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of appellate procedure.” Jackson v. Commissioner of Correction, supra, 135-36.

The habeas court likewise did not abuse its discretion in denying certification to appeal its decision that the petitioner had failed to prove ineffective assistance of trial or appellate counsel. The crux of the petitioner’s claim related to his counsels’ failure to pursue the petitioner’s interest in the disqualification of the trial judge, either for actual bias or for having created an appearance of bias, because the trial judge had presided over another criminal trial involving the petitioner and had commented critically while sentencing him in those proceedings. Considering the record before the habeas court and the applicable legal principles; see, e.g., Liteky v. United States, U.S. , 114 S. Ct. 1147, 1155, 127 L. Ed. 2d 474 (1994); Safford v. Warden, 223 Conn. 180, 190-91, 612 A.2d 1161 (1992); we are not persuaded that the issues, as presented by the petitioner, were debatable among jurists of reason, that they could reasonably have been resolved differently, or that they raised questions deserving further appellate scrutiny.

The judgment is affirmed.

In this opinion Borden and Lavery, Js., concurred.

Callahan, J.,

concurring. In light of the precedent established by Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I), I concur in the result.

Because I was not a member of the panel that decided Simms I, however, I feel obligated to express my opinion that part III of that opinion wherein this court afforded a habeas petitioner a right of appeal from the trial court’s denial of certification, was incorrectly decided. I believe that the plain language and the legislative history of General Statutes § 52-470 (b) both clearly indicate that the legislature intended prohibition of any appeal of a judgment rendered in a habeas corpus proceeding after a denial of certification by the habeas court. See 7 S. Proc., Pt. 5, 1957 Sess., pp. 2936, 2939-40; 7 H.R. Proc., Pt. 5, 1957 Sess., pp. 2881-83. If an appeal from a denial of certification was to be permitted, it should have been accomplished by the amendment of the statute by the legislature and not by this court. See Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 395, 627 A.2d 1296 (1993); see generally Simms I, supra, 229 Conn. 189 (Borden, J., concurring).

Berdon, J.,

dissenting. The last time the petitioner was before us, the majority held that this court lacks jurisdiction to consider a writ of error brought by an unsuccessful habeas petitioner who has been denied certification to appeal. See Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I). I dissented in that case; id., 192; and continue to believe that habeas petitioners who are denied relief by the habeas court should have an absolute right to appeal by bringing a writ of error. See Carpenter v. Meachum, 229 Conn. 193, 203, 640 A.2d 591 (1994) (Berdon, J., dissenting). This was the established practice in our state for many years. See id., 209 (Katz, J., dissenting). Furthermore, providing habeas petitioners with an absolute right to appeal was in keeping with the function of the Great Writ of liberty, which is to serve as “a bulwark against miscarriages of justice and convictions that violate fundamental fairness.” Id., 203 (Berdon, J., dissenting); see also Lozada v. Warden, 223 Conn. 834, 840, 613 A.2d 818 (1992).

In Simms I, the majority claimed that making the writ of error unavailable to disappointed habeas petitioners would not leave these petitioners “remediless to obtain review of the merits of the habeas corpus judgment”; Simms I, supra, 229 Conn. 186; because a petitioner may bring an appeal claiming that “the habeas court’s denial of certification was an abuse of that court’s discretion.” Id., 187. In my dissenting opinion in the companion case of Carpenter v. Meachum, supra, 229 Conn. 204, I questioned whether such an appeal would afford meaningful review to a petitioner’s claim. Today’s decision demonstrates that it will not.

The first count of the petition before us claims ineffective assistance of counsel based on trial counsel’s failure to make a motion to disqualify the trial judge from presiding over the eighteen year old petitioner’s trial on assault and robbery charges. The same trial judge had presided over the petitioner’s felony murder trial just two months before, and had called the petitioner a perjurer in open court and imposed the maximum sen-fence of life imprisonment (sixty years). The trial judge had also criticized the petitioner for his refusal to cooperate with the state in the prosecution of two other defendants involved in the felony murder at St. Joseph’s Cathedral in Hartford, which was also the situs of the assault and robbery charges.

We have long held that “[p]roof of actual bias is not required for disqualification. . . . The appearance as well as the actuality of impartiality on the part of the trier is an essential ingredient of a fair trial.” (Citations omitted.) Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d 915 (1982); see also State v. Santangelo, 205 Conn. 578, 602, 534 A.2d 1175 (1987). Furthermore, “[ojnce [a judge} declares that he believes a party or a witness has been deceitful ... he cannot continue to preside in his role of impartial arbiter.” Cameron v. Cameron, supra, 170.

Notwithstanding the trial judge’s imposition of the maximum sentence for the felony murder conviction, the petitioner’s trial counsel testified before the habeas court that he had not formally moved to disqualify the trial judge because that judge had “many times expressed deep compassion toward Mr. Simms for his unfortunate upbringing.” The petitioner’s trial counsel also testified that because he had orally requested the judge to disqualify himself and the trial judge had denied the motion, he had feared that filing a written motion would, to “the detriment of [his] client, irritate the trial judge.” The first reason is wholly illogical in view of the fact that the judge had imposed the maximum sentence for the felony murder conviction. The second reason is insufficient as a matter of law.

The majority’s “analysis” of this claim is contained in one sentence of its decision: “Considering the record before the habeas court and the applicable legal principles ... we are not persuaded that the issues, as presented by the petitioner, were debatable among jurists of reason, that they could reasonably have been resolved differently, or that they raised questions deserving further appellate scrutiny.” This failure to undertake any analysis of the petitioner’s claim confirms my belief that the abuse of discretion standard effectively forecloses meaningful review of habeas corpus judgments.

I would reach the merits of the petitioner’s claim. Accordingly, I respectfully dissent.

       General Statutes § 53a-59 provides in relevant part: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”
      General Statutes § 53a-59a provides in relevant part: “assault of a victim SIXTY OR OLDER IN THE FIRST DEGREE: CLASS B FELONY: FIVE YEARS not suspendable. (a) A person is guilty of assault of a victim sixty or older in the first degree, when he commits assault in the first degree under . . . section 53a-59 (a) (3) and the victim of such assault has attained at least sixty years of age ....
      “(c) Assault of a victim sixty or older in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”
      General Statutes § 53a-8 provides in relevant part: “criminal liability for ACTS OF another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-135 provides in relevant part: “robbery in the second degree: class c felony, (a) A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present ....
      “(b) Robbery in the second degree is a class C felony.”

       General Statutes § 52-470 provides: “summary disposal of the case, appeal by person convicted of crime, (a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.
      “(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       The United States Supreme Court has similarly concluded that the certification requirement contained in 28 U.S.C. § 2253 is not jurisdictional. Davis v. Jacobs, 454 U.S. 911, 915, 102 S. Ct. 417, 70 L. Ed. 2d 226 (1981); I. Robbins, “The Habeas Corpus Certificate of Probable Cause,” 44 Ohio St. L.J. 307 (1983).

       General Statutes § 53a-35b provides in part that “[a] sentence of imprisonment for life shall mean a definite sentence of sixty years . . . .”

       Practice Book § 997 provides that “[a] motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification . . . ."

       Parenthetically, in addition to the life sentence of sixty years, the trial court imposed on the petitioner an effective sentence of twenty years for the assault and robbery convictions, to be served consecutively to the felony murder conviction—a total of eighty years.

       Without any reference to the trial judge’s statement at the prior felony murder sentencing hearing that he considered the petitioner to be a perjurer and was concerned that the petitioner had failed to cooperate with the state, trial counsel orally moved for disqualification as follows:
      “Mr. Eisenman [petitioner’s trial attorney]: . . . Your Honor, my client has just brought a request to me just a few minutes ago and I have to address the court. Mr. Simms has told me, we have discussed this previously and I told him that there was absolutely nothing in our law that prohibits this because of the role of the court and the role of the judge and the role of the jury as the finders of the fact, and also that body that determines guilt or innocence by jury trials. First of all, Mr. Simms stated that since it was this court that sentenced him in the previous case, that he questions as to whether or not this court should be sitting on this case. . . .
      “The Court: .... As to the . . . motion, the court has indicated that in the presence as the judge, the presiding officer of the trial, is not as you indicated, the fact finder. I can see that if there was some type of previous prejudice, that court might feel that it should be disqualified but I don’t know of any that previously has arisen which would cause me to think of disqualifying myself.

      “Mr. Eisenman: Your Honor, I have reviewed very rapidly, volume one which is all there is available so far of the transcript on the trial, state versus Floyd Simms, consisting of five hundred four pages and I’m certainly familiar with the rest of the trial, almost verbatim and I agree completely. However, my client has asked me to raise that point and I have done so.
      “The Court: All right. Mr. Simms’s motion . . . must be denied without factor to indicate I don’t believe he will be prejudiced by . . . the present role of the judge in the trial being prejudicial to his interests with his motion and you may have exception to the ruling of the court and it may be duly noted.
      “Mr. Eisenman: Thank you, Your Honor. . . .” (Emphasis added.)