State v. Dort

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     STATE OF CONNECTICUT v. JOEL DORT
                 (SC 19066)
    Rogers, C. J., and Palmer, Zarella, Eveleigh and Espinosa, Js.
      Argued April 24—officially released December 30, 2014

  Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were David I. Cohen, state’s attor-
ney, and Michele Manning, assistant state’s attorney,
for the appellant (state).
  Robert E. Byron, assigned counsel, for the appellee
(defendant).
                         Opinion

   EVELEIGH, J. The state appeals, following our grant
of certification, from the judgment of the Appellate
Court reversing the judgment of the trial court con-
victing the defendant, Joel Dort, of burglary in the first
degree in violation of General Statutes § 53a-101 (a) (2)
and kidnapping in the first degree in violation of General
Statutes § 53a-92 and ordering the trial court to conduct
a hearing to determine whether a competency evalua-
tion, as described in General Statutes § 54-56d (d),1 is
needed. See State v. Dort, 

, 

 (2012). On appeal, the state claims that: (1)
the Appellate Court improperly determined that the
trial court’s ‘‘independent inquiry’’ into the defendant’s
request was inadequate, when that issue had not been
raised or briefed by the parties; (2) assuming that it
was proper for the Appellate Court to reach the issue,
that court improperly determined that the trial court’s
inquiry into the defendant’s request for a competency
evaluation was inadequate; and (3) assuming that the
Appellate Court properly determined that the trial
court’s inquiry was inadequate, it improperly deter-
mined that the proper remedy was to vacate the defen-
dant’s conviction and order a hearing to determine
whether a competency evaluation was required. We
affirm the judgment of the Appellate Court, albeit for
different reasons.
   The Appellate Court opinion provides the following
relevant facts and procedural history. ‘‘The jury could
have reasonably found the following facts. In 2009, the
defendant was discharged from his position as a com-
puter consultant for XL Capital, an insurance and rein-
surance company in Stamford. Approximately four
months after the termination of his employment, the
defendant entered XL Capital without proper authoriza-
tion and waited for the victim, one of his supervisors,
in her office. The defendant asked the victim for his
job back, and she informed him that the job had been
outsourced. The victim asked the defendant to leave,
and when he did not, she threatened to call security.
The victim reached for her telephone to call for assis-
tance, and the defendant grabbed the telephone out of
her hand and pointed a gun at her. The victim tried to
escape from the defendant by stepping toward the door,
and the defendant crushed the victim’s hand in the
doorway, grabbed the victim by the throat and slammed
her head against the office wall. The victim broke free
and ran out of her office. The defendant left the building
and was later arrested and charged in a substitute long
form information with burglary in the first degree in
violation of § 53a-101 (a) (2), kidnapping in the first
degree in violation of § 53a-92 (a) (2) (C) and strangula-
tion in the second degree in violation of General Stat-
utes § 53a-64bb (a).
  ‘‘Pursuant to . . . § 54-56d, the court on November
13, 2009, ordered an examination to determine if the
defendant was competent to stand trial. After the exami-
nation was completed and memorialized in a report
dated December 16, 2009, the parties stipulated before
the court that the defendant was competent to stand
trial.
   ‘‘On June 23, 2010, the court granted the defendant’s
motion for a speedy trial and scheduled jury selection
to commence the following day. At the beginning of
jury selection on June 24, 2010, defense counsel brought
to the court’s attention his concerns regarding the
defendant’s competency to stand trial, and asked for
another competency examination to be performed. The
defendant’s counsel stated: ‘I have not had a recent
chance to have a long discussion with [the defendant],
but I have had chances yesterday and on the telephone
and this morning, and just so the court’s aware, he was
evaluated, competency evaluated in or about the first
months after the incidents that gave rise to these
charges occurred.’ At that time the court noted that a
§ 54-56d (d) examination had been ordered. Defense
counsel continued to address the court: ‘My understand-
ing of the statute is that competency is not established
forever. And that having been said, I know [the defen-
dant] has had a competency evaluation, but there are
things that he has said to me and clear-cut advice that,
both on the record and off the record, he continues
not to follow when I give it to him. And these are
fundamental bits of advice, Judge, I might add. So, for
example, don’t talk to anybody about your case or be
advised that you’re not obliged to incriminate yourself
by making incriminating statements. And nonetheless,
that has, in my view, occurred. And my largest problem
at this point is that in the period of one day, since
yesterday, I’ve been asked questions and I’ve observed
a behavior that leads me to believe that he will continue
to have difficulty and an inability to effectively commu-
nicate with counsel in such a way that it will hinder
my ability to defend him, especially with regard to his
understanding of the case and the facts and conditions
that existed at the time that he feels are relevant to his
defense. And for that reason, I would request at this
juncture that the court reexamine him for competency
at this juncture.’
   ‘‘In response, the court noted that a report had been
filed approximately seven months previously that found
the defendant competent to understand the charges
against him and to assist in his defense. The court fol-
lowed up by stating: ‘And I’m hearing that there’s dis-
agreements over following the advice of counsel and
perhaps tactical issues as to whether or not certain
issues and statements might be relevant or not relevant.
I’m not—I mean, that happens in many, many cases.
What else do you have to offer to the court?’ Counsel
for the defendant responded: ‘I’ve certainly been in
those many types of cases where there’s disagreements,
Judge. . . . And just for the record, I can represent as
an officer of the court, there’s a clear distinction
between [disagreement] and what’s going on here.
There’s a fundamental misunderstanding regarding
what can be put forward as a defense in this case.
There’s a fundamental misunderstanding of the seri-
ousness of the charges in light of the defense. It’s not
only a disagreement, it’s a situation where, without
disclosing private communications between attorney-
client, I am led to believe—and I make this statement
as an officer of the court, that attempting to extrapolate
the relevant information from [the defendant] in order
for me to go forward with his defense is virtually
impossible.’
   ‘‘In response, the court noted that defense counsel
had met with [the defendant] on multiple occasions,
and, yet, the first time the court heard of an issue of
competency was when jury selection was to begin.
Defense counsel agreed that that was a pertinent obser-
vation and then stated: ‘I think that in formulating a
view of a [defendant’s] inability to assist at trial, one
needs to take into account, A, I’m not a psychiatrist,
I’m just giving you a layperson’s analysis of the reasons
for why I believe this. And, B, I don’t think it’s—I think
it’s uncontested that these things and the behavior that
exhibits—that attracts the concern can crop up at any
time. And in fact, I know there have been cases—I don’t
have them in front of me, where a defendant may even
be ordered to be examined in the middle of the trial.
. . . So, that having [been] said, in the last day [the
defendant] has said things and not been able to field
information between he and I that I think is necessary
to his proper understanding and his ability to further
instruct me. He’s indicated to me that there are things
that he has withheld because he was waiting for trial—
I don’t know what that means, of course, Judge. But
the point is, I don’t know that he is stable enough or
he understands enough about the seriousness of these
charges for me to move forward and have him assist
me in his own defense. . . . You know, I’ve advised
[the defendant] about the elements of these charges
. . . that he faced last month or at the beginning of the
trial, for example. And there’s been things he’s seized
upon, including the fact that there’s a weapon in this
case or an alleged weapon in this, an alleged gun. And
he’s been informed that that’s not whether the gun is
operable or whether it’s a rubber gun or it’s made of
wood—that does not constitute a defense. I cannot for
the life of me extrapolate much more in the way of
facts from him at this juncture.’
   ‘‘After defense counsel concluded his argument, the
court stated: ‘I think the issue that’s before the court
is whether or not there’s some substantial evidence that
would give rise to a concern on the part of the court
that the defendant is not competent at this time to
proceed with trial. And I must say that I have not heard
that. What I’ve heard is that there are concerns about
communications, there’s some fundamental misunder-
standings as to the seriousness of the charge. . . . I’ve
read the December 16 [2009] report from the three
health care providers who conducted the competency
examination, and, in light of that finding, the gentleman
was found competent. I have not heard any new, sub-
stantial evidence. In fact, I haven’t heard any evidence
that would give rise to a concern that their findings
are no longer accurate. So, at this point, I will deny
the request.’
  ‘‘After the court denied the motion, defense counsel
asked if the defendant could address the court. The
court responded by saying that the defendant could
bring anything to the court’s attention through his coun-
sel. Defense counsel followed up by stating: ‘It’s a
request that’s based on following up, based on what
Your Honor said, and the request is that he be able to
express that to you himself, not from counsel.’ When
the court questioned what defense counsel meant by
that statement, defense counsel noted that the court
had made a determination on the competency issue and
that the defendant ‘believes that there’s other bases for
that and wishes to convey that to the court himself.’ The
court responded by stating that anything the defendant
wanted to apprise the court of must be done through
his counsel. Defense counsel did not address the issue
of competency again.
  ‘‘The defendant was tried and found guilty of first
degree burglary and first degree kidnapping. The court
sentenced him to ten years imprisonment, with seven
years of special parole.’’ (Footnotes omitted.) Id., 403–
408. The defendant then appealed to the Appellate Court
from the trial court’s judgment of conviction, claiming,
inter alia, that the trial court erred in denying the defen-
dant’s request that he be subjected to a second compe-
tency examination.2 Id., 402–403. The Appellate Court
agreed with the defendant, concluding that the trial
court had violated the defendant’s right to due process
by failing to conduct a proper inquiry into the defen-
dant’s competency. Id., 412. As a result, the Appellate
Court reversed the judgment of conviction and ordered
the trial court to ‘‘conduct a hearing to determine
whether a competency evaluation is needed.’’ Id. This
appeal followed.3
                             I
   We first address the state’s claim that the Appellate
Court improperly determined that the trial court’s inde-
pendent inquiry into the defendant’s request for a com-
petency evaluation was inadequate because that issue
had not properly been raised or briefed by either the
state or the defendant before the Appellate Court. The
defendant claims that the issue decided by the Appellate
Court was included in his brief and, further, that the
issue decided by the Appellate Court was so intertwined
with the primary issue raised by the defendant’s brief
that the Appellate Court should have been permitted
to decide the case on either theory. We agree with
the defendant.
   ‘‘We have long held that, in the absence of a question
relating to subject matter jurisdiction, the Appellate
Court may not reach out and decide [an appeal] before
it on a basis that the parties never have raised or briefed.
. . . To do otherwise would deprive the parties of an
opportunity to present arguments regarding those
issues. . . . If the Appellate Court decides to address
an issue not previously raised or briefed, it may do
so only after requesting supplemental briefs from the
parties or allowing argument regarding that issue.’’
(Citation omitted; internal quotation marks omitted.)
Haynes v. Middletown, 

, 474, 

 (2012).4
   In the present case, the state contends that the defen-
dant did not appeal the sufficiency of the trial court’s
independent inquiry into the defendant’s competency,
but, instead, challenged only the trial court’s decision
to deny the defendant’s motion for a competency evalu-
ation as described in § 54-56d (d). The defendant count-
ers the state’s claim by asserting that a discussion
regarding the inadequacy of the trial court’s inquiry into
the defendant’s competency was contained in his brief
as part of the defendant’s claim that the competency
evaluation should have been ordered. The defendant
also suggests that the two issues—the inadequacy of
the trial court’s inquiry into the defendant’s competence
to stand trial and the failure of the trial court to order
a competency hearing—are so intertwined that the
Appellate Court should be permitted to decide the case
on either theory. We agree with the defendant.
   To properly resolve this issue, we find it necessary
to briefly describe the process through which a defen-
dant’s competency to stand trial is investigated when-
ever the circumstances of a case call such competency
into doubt. The United States Supreme Court has estab-
lished that the due process clause of the fourteenth
amendment to the United States constitution ‘‘prohibits
the criminal prosecution of a defendant who is not
competent to stand trial.’’ Medina v. California, 

, 

, 

 (1992).
Similarly, due process demands that, once a defendant’s
competence to stand trial has been sufficiently called
into question, the trial court must order an ‘‘adequate
hearing on his competence to stand trial . . . .’’ Pate
v. Robinson, 

, 

, 

 (1966). It is constitutionally permissible for the
burden to be placed on the defendant to prove, by a
preponderance of the evidence, that he is incompetent
and, as a result, it is not unconstitutional to begin with
the presumption that a given defendant is competent
to stand trial. See Medina v. 

 446–53.
   In determining whether a defendant’s competence
has been sufficiently called into doubt so as to necessi-
tate a hearing on the matter, the United States Supreme
Court has cautioned that there is no single approach
or factor that is most important in establishing compe-
tency or lack thereof. See Drope v. Missouri, 

, 

, 

 (1975). ‘‘[E]vi-
dence of a defendant’s irrational behavior, his
demeanor at trial, and any prior medical opinion on
competence to stand trial are all relevant in determining
whether further inquiry is required, but that even one
of these factors standing alone may, in some circum-
stances, be sufficient. There are, of course, no fixed or
immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed; the
question is often a difficult one in which a wide range
of manifestations and subtle nuances are implicated.
That they are difficult to evaluate is suggested by the
varying opinions trained psychiatrists can entertain on
the same facts.’’ 

  This constitutional background informs the manner
in which § 54-56d, this state’s statutory scheme for
determining a defendant’s competence, operates to
ensure that a defendant’s right to be competent while
standing trial is assured. Under Connecticut law, a
defendant is initially presumed to be competent and,
unless the court or state initially raises the issue of
competency, the defendant is assigned the burden of
proving his or her lack of competence by a preponder-
ance of the evidence. General Statutes § 54-56d (a) and
(b). However, ‘‘Connecticut jealously guards this right.’’
State v. Johnson, 

, 

 (2001).
Any party before the court—including the court itself—
may raise the issue of the defendant’s competency at
any time during a criminal proceeding by requesting
that the court order a competency examination. General
Statutes § 54-56d (c). If the court determines that a
party’s request for the defendant to undergo a compe-
tency examination is ‘‘justified,’’ and so long as the court
concludes that there is probable cause to believe that
the defendant committed the crime of which he or she
has been accused, the court must order a competency
examination of the defendant. General Statutes § 54-
56d (d).
   This examination is not a court hearing, but instead is
performed by one or more specialists such as a medical
physician who specializes in psychiatry, a clinical psy-
chologist, a clinical social worker, or a psychiatric nurse
specialist. General Statutes § 54-56d (d). Those special-
ists who are appointed to conduct the defendant’s
examination are then required to submit a written
report to the court which is to include a recommenda-
tion as to: (1) the defendant’s competency, or lack
thereof; and (2) if applicable depending on the circum-
stances of the case, whether the examiners believe that
the defendant would be a suitable candidate for civil
commitment. General Statutes § 54-56d (d). Following
the competency examination, and within ten days of
the filing of the written report by the examiners, the
trial court must hold a competency hearing. General
Statutes § 54-56d (e). At this hearing, any evidence
regarding the defendant’s competency, including the
written report filed by the examiners, may be submitted
by either the defendant or the state.5 General Statutes
§ 54-56d (e). This competency hearing may be waived
by the defense, but only if, in the submitted written
report, the examiners unequivocally conclude that the
defendant is competent. General Statutes § 54-56d (e).
   Thus, the procedures used to determine a defendant’s
competency, once a court determines that a request for
a competency examination is ‘‘justified’’ are clearly set
out by statute. Less well defined is the process through
which a court determines that such a request is, in fact,
‘‘justified.’’ This aspect of the process has largely been
left to the courts. Section 54-56d ‘‘provides that a defen-
dant 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. . . . Sub-
stantial evidence is a term of art. Evidence encompasses
all information properly before the court, whether it is
in the form of testimony or exhibits formally admitted
or it is in the form of medical reports or other kinds
of reports that have been filed with the court. Evidence
is substantial if it raises a reasonable doubt about the
defendant’s competency . . . . The trial court should
carefully weigh the need for a hearing in each case, but
this is not to say that it should be available on demand.
The decision to grant a hearing requires the exercise
of sound judicial discretion. . . . [P]risoners 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].’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Lloyd, 

, 364–66, 

 (1986).
  The Appellate Court’s analysis reveals that it found
that the trial court’s decision to refuse to order a compe-
tency examination following the initial inquiry con-
ducted into the defense counsel’s allegations regarding
his concerns over the defendant’s competency was an
abuse of discretion. See State v. 

 138 Conn.
App. 411–12. Specifically, the Appellate Court deter-
mined that the ‘‘assertions [made by defense counsel],
paired with the statement that there may have been
relevant confidential communications at issue, were
sufficient to constitute specific factual allegations that,
if taken as true, would constitute substantial evidence
of mental impairment. The [trial] court therefore was
required to conduct an ‘independent inquiry,’ namely,
a hearing before the court, to determine whether a
competency evaluation was justified.’’ 

. The
Appellate Court then went on to conclude that ‘‘in deny-
ing counsel’s request for a competency examination,
the [trial] court did not make any reference to the defen-
dant’s behavior or any relevant communications with
the defendant. It denied the motion without further
comment. The [trial] court also refused the defendant
the opportunity to address the [trial] court on this issue,
which would have given the court an opportunity to
make these key observations. We conclude that, based
on the specific facts of this case, it was an abuse of
discretion to disregard defense counsel’s assertions
without further inquiry into the defendant’s compe-
tence. . . . Because the court failed to conduct an
appropriate inquiry into the defendant’s competence,
the court violated the defendant’s due process rights.’’

.
   The analysis of the Appellate Court was entirely
proper based on the claims of the parties before it. For
example, in his brief before the Appellate Court, the
defendant asserted that defense counsel’s representa-
tions about the defendant’s behavior qualified as spe-
cific factual allegations that, if true, would have
constituted substantial evidence of lack of competency.
Similarly, the defendant claimed that the trial court’s
failure to order a competency hearing based on the
factual allegations before it amounted to an abuse of
discretion. Along the same lines, the state, in its brief
to the Appellate Court, claimed that the trial court’s
denial of the defendant’s request for a competency
examination was a proper exercise of that court’s dis-
cretion. Indeed, much of the briefs of both parties sub-
mitted to the Appellate Court focused on whether the
allegations made by the defendant before the trial court
constituted a sufficient basis from which the court
could conclude that ‘‘ ‘substantial evidence’ ’’ of the
defendant’s mental impairment existed. The Appellate
Court specifically concluded that defense counsel’s
assertions, ‘‘paired with the statement that there may
have been relevant confidential communications at
issue, were sufficient to constitute specific factual alle-
gations that, if taken as true, would constitute substan-
tial evidence of mental impairment.’’ State v. 

.
  The state compares the situation in the present case
to that in Haynes v. Middletown, supra, 

.
In Haynes, this court reversed the judgment of the
Appellate Court because it concluded that the Appellate
Court had improperly decided the case on an alternative
basis that had not been raised by the parties. Id., 474–75.
Primarily, this court concluded that the parties lacked
both adequate notice and a sufficient opportunity to
address the issue that the Appellate Court ultimately
addressed. Id. In that case, the plaintiffs in a civil action
against the defendant municipality had appealed the
judgment of the trial court setting aside a jury verdict
in their favor because it concluded that the defendant
was entitled to governmental immunity. Id., 472–73. The
plaintiffs appealed, claiming that ‘‘(1) the defendant
waived that defense by failing to request a jury charge
on municipal immunity and (2) there was sufficient
evidence of imminent harm for the plaintiffs’ claim to
fall within the identifiable person, imminent harm
exception to the immunity generally afforded munici-
palities for the negligent performance of discretionary
acts.’’ Haynes v. Middletown, 

,

 (2010). The Appellate Court ultimately
affirmed the judgment of the trial court on a third
ground, concluding that ‘‘the plaintiffs never made the
applicability of the identifiable victim, imminent harm
exception to discretionary act immunity a legal issue
in the case because they failed to plead it in their com-
plaint or in their reply to the defendant’s special defense
of governmental immunity.’’ 

. This court reversed,
noting that this alternative basis had not been briefed
by either party prior to oral argument, and that this
claim was first raised, ‘‘tangentially,’’ by the defendant
during oral argument. Haynes v. 

 306
Conn. 474–75. This court observed that ‘‘[t]wo judges on
the panel discussed this issue with the defendant. The
plaintiffs had reserved three minutes for rebuttal. Dur-
ing these three minutes, the plaintiffs addressed two
issues raised during the defendant’s argument, but they
did not refer to the defendant’s claim that they had
failed to plead the identifiable victim, imminent harm
exception to discretionary act immunity. Nor did the
plaintiffs request the opportunity during or after argu-
ment to file a supplemental brief.’’ Id. 474. On review
of the record presented in Haynes, this court concluded
that the basis on which the Appellate Court decided
the case had been inadequately briefed, thereby depriv-
ing the plaintiffs of notice and an opportunity to be
heard. Id.
   Unlike the situation in Haynes, as we described ear-
lier, the analysis of the Appellate Court in the present
case essentially dealt with the issue briefed by the par-
ties. The defendant in this case challenged the appropri-
ateness of the trial court’s decision to deny his request
for a competency exam, and the state made its argu-
ments on the same topic. The Appellate Court
addressed this specific issue throughout the oral argu-
ment with both parties, and in its opinion. Whether it
correctly decided the issue is another matter, the merits
of which we examine in part II of this opinion. We
disagree, therefore, with the state’s claim that it had
inadequate notice or an insufficient opportunity to be
heard on the issue on which the Appellate Court decided
the present case.
                            II
   We now turn to the second issue, namely, whether
the Appellate Court properly determined that the trial
court had inadequately inquired into the defendant’s
request for a competency evaluation. Viewed in combi-
nation, the ultimate conclusion of the Appellate Court
and this certified question suggest that there is some
confusion in this area of the law. In our view, we must,
therefore, rephrase the second certified question. See,
e.g., State v. Ouellette, 

, 

 (2010) (courts must, when necessary, ‘‘reformulate
the certified question to conform to the issue actually
presented to and decided in the appeal to the Appellate
Court’’). In our view, the question properly before us
is as follows: ‘‘Whether the Appellate Court properly
concluded that the trial court had abused its discretion
in finding that the allegations made by the defendant
in support of his motion for a competency evaluation,
when presumed to be true, did not constitute substan-
tial evidence of mental impairment?’’
   In the present case, the state claims that the asser-
tions made by defense counsel regarding the defen-
dant’s mental well-being and behavior did not constitute
specific factual allegations, but instead were legal con-
clusions of the sort that this court has historically found
to be an insufficient basis from which to order a compe-
tency hearing. The state further contends that, even
if the representations made by defense counsel were
sufficient to raise a reasonable doubt as to the defen-
dant’s competency, the trial court adequately per-
formed that inquiry. In response, the defendant claims
that the trial court’s inquiry into the situation following
defense counsel’s factual allegations was inadequate
because the trial court failed to canvass the defendant
personally, nor did it make a record of its own observa-
tions regarding the defendant’s in-court behavior and
his ability to comprehend the charges against him and
assist in his own defense. We agree with the defendant.
   ‘‘ ‘The standard we use to determine whether a defen-
dant is competent under state law to stand trial is that
set forth in Dusky v. United States, 

, 

, 

 (1960) . . . .’ ’’ State v. George
B., 

, 

 (2001). Dusky
provides that the test used to determine whether a
defendant is competent to stand trial is ‘‘whether [the
defendant] has sufficient present ability to consult with
his lawyer with a reasonable degree of rational under-
standing—and whether he has a rational as well as
factual understanding of the proceedings against him.’’
(Internal quotation marks omitted.) Dusky v. United

. ‘‘ ‘The Dusky standard has been codi-
fied at . . . § 54-56d (a), which provides that [a] defen-
dant 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 under-
stand the proceedings against him or to assist in his
own defense.’ . . . State v. Wolff, [

,

 (1996)].
   ‘‘In addition, ‘[t]he rule of [Pate v. 

] imposes a constitutional obligation, under
the due process clause, to undertake an independent
judicial inquiry, in appropriate circumstances, into a
defendant’s competency to stand trial . . . . When a
Pate inquiry is required, a court may not rely on the
defendant’s subjective appraisal of his own capacity or
on the court’s personal observations of the defendant
but must hold an evidentiary hearing into the defen-
dant’s competence.’ . . . State v. 

 237
Conn. 663–64. ‘Competence to stand trial is a legal ques-
tion, which must ultimately be determined by the trial
court.’ State v. DeAngelis, 

, 

 (1986).’’ State v. George 

 258 Conn. 785–86.
   As we have explained previously in this opinion,
‘‘§ 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 proceed-
ings 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 allega-
tions that, if true, would constitute substantial evidence
of mental impairment. . . . Substantial evidence is a
term of art. Evidence encompasses all information
properly before the court, whether it is in the form of
testimony or exhibits formally admitted or it is in the
form of medical reports or other kinds of reports that
have been filed with the court. Evidence is substantial
if it raises a reasonable doubt about the defendant’s
competency . . . . The trial court should carefully
weigh the need for a hearing in each case, but this is
not to say that it should be available on demand. The
decision to grant a hearing requires the exercise of
sound judicial discretion. . . . [P]risoners are not enti-
tled 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].’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. 

199 Conn. 364–66.
   ‘‘[T]he opinion of the defendant’s counsel [as to his
or her client’s competency] ‘is unquestionably a factor
which should be considered’ ’’ when a trial court is
attempting to discern whether a request for a compe-
tency examination has merit. State v. DesLaurier, 

, 

 (1994), quoting Drope v.

 420 U.S. 177–78 n.13. The weight to
be assigned to the defense counsel’s opinion must be
assessed on a sliding scale; in any given case it will be
largely dependent on whether the attorney’s opinion is
based on specific facts related to the defendant’s then
current competency or lack thereof. Compare State v.

 (noting that ‘‘[t]he trial court
reasonably could have afforded little weight to the
assertion of the defendant’s counsel about the defen-
dant’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 conclu-
sion 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’’), with 

 (suggesting that
defense counsel’s opinion would have carried greater
weight had defendant made ‘‘specific factual allegations
about how any earlier impairment ‘may have affected
his competence that day’ ’’ [emphasis in original]); see
also 

 588–89 (comparing United States v. Goines,

 [7th Cir.], cert. denied, 

,

, 

 [1993], in which court
found no abuse of discretion to deny competency hear-
ing where trial court ‘‘personally observed defendant
to be lucid and defense counsel failed to support allega-
tions about defendant’s competency with sufficient
facts’’ with United States v. Nichols, 

 [W.D. Mich. 1987)], in which trial court granted
competency hearing ‘‘based on defense counsel’s ‘four-
page, detailed affidavit’ ’’).
   We have, however, also previously observed that a
trial court is frequently ‘‘in the best position to assess
whether [a] defendant [is behaving] rationally at [the
time of the request].’’ State v. 

. For this reason, we have acknowledged that
a trial court ‘‘is entitled to rely on its own observations
of the defendant’s responses during . . . canvassing,
in light of his [or her] demeanor, tone, attitude and
other expressive characteristics’’ when evaluating a
motion for a competency examination. 

   In the present case, defense counsel provided multi-
ple, specific representations to the court regarding the
defendant’s conduct that led counsel to believe that
further inquiry into the defendant’s competency was
required.6 For example, defense counsel stated that ‘‘in
the period of one day, since yesterday, I’ve been asked
questions and I’ve observed a behavior that leads me
to believe that [the defendant] will continue to have
difficulty and an inability to effectively communicate
with counsel in such a way that it will hinder my ability
to defend him, especially with regard to his understand-
ing of the case and the facts and conditions that existed
at the time that [the defendant] feels are relevant to his
defense.’’ When pressed for further clarification by the
trial judge, counsel expanded on his earlier statement:
‘‘I can represent as an officer of the court, there’s a clear
distinction between [a tactical disagreement between a
client and counsel] and what’s going on here. There’s
a fundamental misunderstanding regarding what can
be put forward as a defense in this case. There’s a
fundamental misunderstanding of the seriousness of
the charges in light of the defense. It’s not only a dis-
agreement, it’s a situation where, without disclosing
private communications between attorney-client, I am
led to believe . . . that attempting to extrapolate the
relevant information from [the defendant] in order for
me to go forward with his defense is virtually
impossible.’’
   The trial court observed that defense counsel had
had many opportunities to meet with the defendant,
and questioned as to why counsel chose to raise this
issue now. Counsel replied: ‘‘[I]n the last day [the defen-
dant] has said things and not been able to field informa-
tion . . . that I think is necessary to his proper
understanding and his ability to further instruct me.
He’s indicated to me that there are things that he has
withheld because he was waiting for trial—I don’t know
what that means, of course, Judge. But the point is, I
don’t know that he is stable enough or he understands
enough about the seriousness of these charges for me
to move forward and have him assist me in his own
defense. . . . I understand the nature of this case, I
understand the charges, I understand they have been
changed today. . . . I’ve advised [the defendant] about
the elements of these charges and the charges that he
faced last month or at the beginning of the trial . . . .
And there’s been things he’s seized upon, including the
fact that there’s . . . an alleged gun. And he’s been
informed that that’s not whether the gun is operable
or whether it’s a rubber gun or it’s made of wood—
that does not constitute a defense. I cannot for the life
of me extrapolate much more in the way of facts from
him at this juncture. I don’t know whether it’s because
he’s seizing up today or what . . . but I need the infor-
mation that he’s talking about because the charges have
just changed and now that’s not an issue. And maybe
that’s what’s causing the problem.’’
  In response, the trial court solicited the opinion of
the state, which suggested that the motion was a
delaying tactic by defense counsel. The trial court deter-
mined that it had not heard ‘‘substantial evidence’’ that
would give rise to a ‘‘concern on the part of the [trial]
court that the defendant [was] not competent . . . to
proceed with trial,’’ noting that it had ‘‘read the [approxi-
mately seven month old] report from the three health
care providers who conducted the competency exami-
nation, and, [that] in light of that finding, the [defendant]
was found competent.’’ The trial court continued: ‘‘I
have not heard any new, substantial evidence. In fact,
I haven’t heard any evidence that would give rise to a
concern that their findings are no longer accurate.’’ The
trial court thus denied the defendant’s motion. Defense
counsel then represented to the trial court that the
defendant wished to ‘‘express something to the [trial
court] at this point.’’ The trial court declined to listen
to the defendant, explaining that ‘‘I usually don’t solicit
or accept expressions. If there’s some relevant issue
[defense counsel may] bring it to the [trial court’s] atten-
tion . . . .’’ Defense counsel explained that the defen-
dant’s request was ‘‘based on what Your Honor said,
and the request is that he be able to express that to
you himself, not from counsel.’’
   The trial court stated that if counsel wished to bring
anything further to its attention, it would listen. Defense
counsel then stated that ‘‘[m]y client wishes to express
concern. He does not understand how a judge can force
us to go to trial in one day. He’s been informed of the
speedy trial issue . . . but his concern is that yesterday
the reason why he objected to the time frame was
because there was no certitude to the date in September
and he believes that that lack of certitude runs contrary
to our agreement. And that he does have concern that
a judge is able to do that, just to give him any date.
Because he’s sitting in jail and the purpose of the speedy
trial motion is to have some certitude and a date in
September which may or may not happen to him gave
him great concern because he’s sitting in jail.’’ The trial
court thanked the attorney for bringing the issue to its
attention, and asked if there were any other issues to
be addressed before beginning jury selection. Defense
counsel stated, ‘‘Judge, [the defendant] wishes me to
tell you that he’s not ready for any of this stuff.’’ The
trial court then proceeded with other housekeeping
matters without ever directly canvassing the defendant
regarding his competency.
   It is important to understand the context in which the
defense counsel made these statements. In an earlier
information, the defendant in this case had been
charged with, inter alia, burglary in the first degree in
violation of § 53a-101 (a) (1),7 which requires as an
essential element of the offense the defendant to be in
possession of a dangerous weapon or deadly instru-
ment, and kidnapping in the first degree with a firearm
in violation of General Statutes (Supp. 2014) § 53a-92a
(a),8 which requires the defendant to display or repre-
sent that he ‘‘possesses a pistol . . . or other firearm.’’
The state then amended the information, charging the
defendant instead with the crimes of burglary in the first
degree in violation of § 53a-101 (a) (2),9 strangulation in
the second degree in violation of § 53a-64bb (a)10 and
kidnapping in the first degree in violation of § 53a-92
(a) (2) (C).11 None of these amended charges require
the use, or represented use, of a firearm, deadly weapon,
or dangerous instrument. See General Statutes §§ 53a-
101 (a) (2), 53a-92 (a) (2) (C) and 53a-64bb (a). Defense
counsel quite clearly indicated that the defendant was
focused entirely on whether he had allegedly used a
gun in committing the acts of which he was accused—
a fact that was no longer relevant to his defense, given
the amended charges against him.12 Thus, as a result,
the representations made by defense counsel indicated
that, as a result of new events—namely, the amendment
of the information—the defendant was unable to assist
in his own defense because he was unable to supply
defense counsel with any relevant information to com-
bat those charges. Viewed in this context, defense coun-
sel’s representations were quite factually specific and,
if true, suggested both a lack of ability of the defendant
to communicate rationally with counsel, and a lack of
comprehension by the defendant of the charges that he
currently faced.
   The statements made by defense counsel in support
of the defendant’s motion for a competency hearing
represent the sort of specific, fact laden allegations that,
if true, would constitute substantial evidence of mental
impairment on the part of the defendant. In the present
case, the trial court rejected these statements, finding
them insufficient in light of a seven month old compe-
tency report. We conclude that this represented an
abuse of the trial court’s discretion.
   The state contends that the allegations made by
defense counsel in this case amounted only to ‘‘legal
conclusions’’ of the sort that we have previously found
insufficient to qualify as ‘‘substantial evidence’’ of men-
tal impairment. The state compares the allegations by
defense counsel in this case to those by the defendant
in State v. Ross, 

, 268–74, 

(2004), and State v. 

. We
disagree. In Ross and Lloyd, defense counsel made very
generic, conclusory statements to the court. See, e.g.,
State v. 

 (‘‘[d]efense counsel indicated
that the defendant was suffering from severe depression
and made repeated representations to the effect that
he was ‘unable to rationally have discussion with regard
to choices in his case at this time’ ’’); State v. 

 (‘‘[D]efense counsel argued to the court that
the defendant appeared to be confused and not to
‘understand everything that’s going on.’ Other than this
assertion, there were no specific allegations concerning
his competence to be sentenced.’’). In the present case,
defense counsel was as specific as possible while still
preserving the confidentiality of the communications
between himself and the defendant. Defense counsel
provided examples of the trouble that he perceived that
the defendant was experiencing, offered a theory as to
what had caused this sudden lack of competence, and
explained in detail why the defendant’s conduct was
preventing counsel from assisting in his client’s defense.
It would not be reasonable to expect defense counsel’s
allegations in this regard to be more precise.
   In Lloyd, for instance, we noted that defense counsel
argued to the court that ‘‘the defendant appeared to be
confused and not to understand everything that’s going
on.’’ (Internal quotation marks omitted.) State v. 

. We then observed that ‘‘[o]ther
than this assertion, there were no specific allegations
concerning his competence to be sentenced. The court
could have assumed that the defendant’s current mental
state was the product of drug abuse, but that was never
averred.’’ 

 We then stated that: ‘‘we conclude that
the defendant failed to make specific factual allegations
sufficient to raise a reasonable doubt as to his compe-
tence and that the trial court did not err in imposing
sentence. The defendant did not specify the grounds
of his claimed incompetency and left it to the trial court
to surmise why he was mentally impaired.’’ 

.
Likewise, in State v. 

 269 Conn. 266–74,
shortly after the defendant’s suicide attempt the defen-
dant requested that a trial court order a competency
examination. ‘‘At the hearing, defense counsel indicated
that the defendant was limiting his claim that he was
incompetent to the second prong of § 54-56d, i.e., that
he was unable to assist in his own defense. Defense
counsel indicated that the defendant was suffering from
severe depression and made repeated representations
to the effect that he was ‘unable to rationally have
discussion with regard to choices in his case at this
time.’ . . . The trial court canvassed the defendant on
his understanding of the nature of the proceedings.’’
Id., 267–68. Thereafter, the court made several specific
factual findings that indicated that the defendant was
able to assist in his own defense. See id., 269 (finding
that defendant ‘‘did not suffer from any known or appar-
ent illness or defect that would impair his ability to
assist his counsel’’ was ‘‘intelligent and articulate’’ and
‘‘fully comprehended the status of his case’’).
   ‘‘On the basis of these findings, the court determined
that the evidence did not establish that the defendant
was unable to assist counsel and that any doubt on that
matter was based not on the defendant’s inability to
assist counsel, but ‘upon a difference of opinion
[between the defendant] and his counsel concerning
the manner in which the case in mitigation [was] to be
presented, if presented at all.’ Accordingly, the trial
court denied the defendant’s motion for a competency
examination. Over the course of the ensuing penalty
phase proceeding, the trial court noted periodically on
the record that the defendant was interacting appropri-
ately with his counsel.’’ (Emphasis in original; footnote
omitted.) Id., 269–70. We then stated that ‘‘[w]e con-
clude that the trial court reasonably could have deter-
mined, on the basis of its canvass of the defendant at the
. . . hearing, and the lack of any testimony, exhibits or
medical reports to support the defendant’s claim of
incompetence, that there was no reasonable doubt that
the defendant not only understood the nature of the
proceedings but also was able to communicate with
and assist his counsel. As the trial court noted, the facts
adduced at the hearing supported, at most, an inference
that the defendant was reluctant to assist counsel, not
that he was unable to do so.’’ (Emphasis in original.)
Id., 273.
   Ross is easily distinguished from the present case
because it involved specific findings made by the trial
court as the result of a canvass. See Id., 269. We placed
great weight on the findings made by the court. Id., 273.
In the present case, there was no canvass and, therefore,
no findings made by the trial court. Instead, the court
relied upon a seven month old competency exam.
   In Lloyd we noted that ‘‘[i]n support of his motion
to withdraw [his plea of guilty], the defendant averred
that on the day of the plea he was under the influence
of drugs and did not understand the questions that were
asked or the meaning of his plea. The defendant did
not state when the drugs had been consumed, how
much he had taken, or even what type of narcotic he
had used.’’ State v. 

. We
also observed that ‘‘[t]he trial court after conducting
an extensive canvass, accepted his plea.’’ 

. We
further observed that ‘‘[f]or the purpose of determining
whether to hold an evidentiary hearing, the court should
ordinarily assume any specific allegations of fact to be
true. If such allegations furnish a basis for withdrawal
of the plea . . . and are not conclusively refuted by the
record of the plea proceedings, and other information
contained in the court file, then an evidentiary hearing is
required.’’ (Internal quotation marks omitted.) 

.
   In our conclusion on this issue, we specifically noted
that ‘‘[a]fter carefully reviewing the record of the plea
canvass and the proceedings on the motion to with-
draw, we conclude that the defendant failed to establish
the need for a hearing to determine his competence
. . . and that the trial court therefore properly denied
the motion without first ordering a hearing. . . . More-
over, the defendant during the plea proceedings specifi-
cally told the court that he was not then under the
influence of any drugs or medication. This alone would
tend to refute the defendant’s allegations made in his
motion to withdraw.’’ (Citations omitted; emphasis
added.) 

 363–64.
  Thus, we conclude that Lloyd is also distinguishable
on the basis of two factors. First, the allegations in the
present case are far more specific than Lloyd. Second,
Lloyd involved a plea canvass wherein the defendant
specifically refuted the basis for his motion to with-
draw. In both Lloyd and Ross we emphasized the pres-
ence of a form of canvass of the defendant by the trial
court. A canvass of any kind is absent in the present
case. Therefore, the state’s reliance upon both Lloyd
and Ross is misplaced.
   The state also contends that trial court was permitted
to disregard the allegations of defense counsel in favor
of the trial court’s own personal observations of the
defendant, suggesting that ‘‘[b]y requiring the defendant
to funnel [issues pertaining to the defendant’s compe-
tency] through counsel, the court essentially canvassed
the defendant through his attorney.’’ Although we agree
with the state that a trial court need not automatically
defer to the opinion of defense counsel on the matter
of the defendant’s competence when the trial court sees
evidence contradicting those representations before his
or her own eyes; see, e.g., State v. 

230 Conn. 589–90; we disagree that the defendant was
canvassed here, and we note that the trial court did not
deny the defendant’s motion on the basis of its own in-
court observations regarding the defendant’s behavior.
   To begin, we disagree that a defendant whose compe-
tence has been challenged may be personally canvassed
through the questioning of his or her attorney. The
Dusky standard of competence requires that a defen-
dant possess, at a minimum, ‘‘sufficient present ability
to consult with his lawyer with a reasonable degree of
rational understanding . . . .’’ Dusky v. United States,
supra, 

. If a defendant is unable to rationally
consult with his or her attorney, it would be impossible,
logically, for counsel to speak on his or her behalf.
Furthermore, although the trial court might well have
been able to determine that the defendant was indeed
competent to stand trial by canvassing the defendant
personally, it did not do so in this case, nor did it justify
its denial of the defendant’s motion on that ground.
Instead, the trial court relied on an old competency
report, despite counsel’s representations that this issue
had newly surfaced. ‘‘Even when a defendant is compe-
tent at the commencement of his trial, a trial court must
always be alert to circumstances suggesting a change
that would render the accused unable to meet the stan-
dards of competence to stand trial.’’ (Internal quotation
marks omitted.) State v. 

.
On the basis of the specific facts of the present case,
we conclude that it was an abuse of the trial court’s
discretion not to order a competency hearing.
                             III
   We now turn to the final issue, namely, whether the
Appellate Court improperly concluded that the appro-
priate remedy in the present case was to reverse the
defendant’s conviction and order a new hearing to
determine whether a competency evaluation is pres-
ently required for the defendant. The state contends
that the appropriate remedy in this case would be only
to order a new hearing to determine if a second compe-
tency examination is required of the defendant, but that
it is not appropriate to vacate the defendant’s convic-
tion. The state also notes that the defendant has not
requested a new competency evaluation following his
conviction. In response, the defendant contends that
the remedy ordered by the Appellate Court is in line
with United States Supreme Court precedent. We agree
with the defendant.
   In resolving a similar issue in Drope, the United States
Supreme Court observed as follows: ‘‘The question
remains whether [the] petitioner’s due process rights
would be adequately protected by remanding the case
now for a psychiatric examination aimed at establishing
whether [the] petitioner was in fact competent to stand
trial in 1969. Given the inherent difficulties of such a
nunc pro tunc determination under the most favorable
circumstances, see [Pate v. 

 383 U.S.
386–387, and Dusky v. United States, supra, 

], we cannot conclude that such a procedure would
be adequate here. Cf. Conner v. Wingo, [

,
639–40 (6th Cir. 1970)]. The [s]tate is free to retry the
petitioner, assuming, of course, that at the time of such
trial he is competent to be tried.’’ Drope v. 

.
  We agree with the sentiment expressed by the United
States Supreme Court in Drope. It is no longer possible
for us to determine whether the defendant was compe-
tent—and therefore able to rationally communicate
with and assist counsel in his defense—during the trial
that led to his conviction. As a result, we cannot say that
his due process rights would be adequately protected
merely by ordering a new hearing to determine his
competency. We therefore affirm the judgment of the
Appellate Court reversing the judgment of conviction
and directing the trial court to conduct a hearing to
determine whether a competency evaluation is needed.
  The judgment of the Appellate Court is affirmed, and
the case is remanded to that court with direction to
remand the case to the trial court for further proceed-
ings in accordance with this court’s opinion.
  In this opinion ROGERS, C. J., and PALMER and
ZARELLA, Js., concurred.
  1
    General Statutes § 54-56d provides in relevant part: ‘‘(a) A defendant
shall not be tried, convicted or sentenced while the defendant is not compe-
tent. For the purposes of this section, a defendant is not competent if the
defendant is unable to understand the proceedings against him or her or
to assist in his or her own defense.
  ‘‘(b) A defendant is presumed to be competent. The burden of proving
that the defendant is not competent by a preponderance of the evidence
and the burden of going forward with the evidence are on the party raising
the issue. The burden of going forward with the evidence shall be on the
state if the court raises the issue. The court may call its own witnesses and
conduct its own inquiry.
  ‘‘(c) If, at any time during a criminal proceeding, it appears that the
defendant is not competent, counsel for the defendant or for the state, or
the court, on its own motion, may request an examination to determine the
defendant’s competency.
  ‘‘(d) If the court finds that the request for an examination is justified and
that, 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 the defendant is charged, the court shall order an
examination of the defendant as to his or her competency. The court may
(1) appoint one or more physicians specializing in psychiatry to examine
the defendant, or (2) order the Commissioner of Mental Health and Addiction
Services to conduct the examination either (A) by a clinical team consisting
of a physician specializing in psychiatry, a clinical psychologist and one of
the following: A clinical social worker licensed pursuant to chapter 383b
or a psychiatric nurse clinical specialist holding a master’s degree in nursing,
or (B) by one or more physicians specializing in psychiatry, except that no
employee of the Department of Mental Health and Addiction Services who
has served as a member of a clinical team in the course of such employment
for at least five years prior to October 1, 1995, shall be precluded from being
appointed as a member of a clinical team. If the Commissioner of Mental
Health and Addiction Services is ordered to conduct the examination, the
commissioner shall select the members of the clinical team or the physician
or physicians. When performing an examination under this section, the
examiners shall have access to information on treatment dates and locations
in the defendant’s treatment history contained in the Department of Mental
Health and Addiction Services’ database of treatment episodes for the pur-
pose of requesting a release of treatment information from the defendant.
If the examiners determine that the defendant is not competent, the examin-
ers shall then determine whether there is a substantial probability that the
defendant, if provided with a course of treatment, will regain competency
within the maximum period of any placement order under this section. If
the examiners determine that there is a substantial probability that the
defendant, if provided with a course of treatment, will regain competency
within the maximum period of any placement order under this section, the
examiners shall then determine whether the defendant appears to be eligible
for civil commitment, with monitoring by the Court Support Services Divi-
sion, pursuant to subdivision (2) of subsection (h) of this section. If the
examiners determine that there is not a substantial probability that the
defendant, if provided with a course of treatment, will regain competency
within the maximum period of any placement order under this section, the
examiners shall then determine whether the defendant appears to be eligible
for civil commitment to a hospital for psychiatric disabilities pursuant to
subsection (m) of this section and make a recommendation to the court
regarding the appropriateness of such civil commitment. The court may
authorize a physician specializing in psychiatry, a clinical psychologist, a
clinical social worker licensed pursuant to chapter 383b or a psychiatric
nurse clinical specialist holding a master’s degree in nursing selected by
the defendant to observe the examination. Counsel for the defendant may
observe the examination. The examination shall be completed within fifteen
business days from the date it was ordered and the examiners shall prepare
and sign, without notarization, a written report and file such report with
the court within twenty-one business days of the date of the order. On
receipt of the written report, the clerk of the court shall cause copies to
be delivered immediately to the state’s attorney and to counsel for the
defendant.
   ‘‘(e) The court shall hold a hearing as to the competency of the defendant
not later than ten days after the court receives the written report. Any
evidence regarding the defendant’s competency, including the written report,
may be introduced at the hearing by either the defendant or the state, except
that no treatment information contained in the Department of Mental Health
and Addiction Services’ database of treatment episodes may be included in
the written report or introduced at the hearing unless the defendant released
the treatment information pursuant to subsection (d) of this section. If the
written report is introduced, at least one of the examiners shall be present
to testify as to the determinations in the report, unless the examiner’s
presence is waived by the defendant and the state. Any member of the
clinical team shall be considered competent to testify as to the team’s
determinations. A defendant and the defendant’s counsel may waive the
court hearing only if the examiners, in the written report, determine without
qualification that the defendant is competent. Nothing in this subsection shall
limit any other release or use of information from said database permitted by
law. . . .’’
   Although § 54-56d (a) has been the subject of several recent amendments
by the legislature; see, e.g., Public Acts 2009, No. 09-79, § 1; those amend-
ments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
   2
     The defendant also challenged the trial court’s refusal to permit the
defendant to withdraw his motion for a speedy trial. See State v. 

. The Appellate Court did not reach this claim, and
it is not relevant to the issue presently before this court.
   3
     We granted the state’s petition for certification limited to three questions:
(1) ‘‘Did the Appellate Court properly determine that the trial court’s indepen-
dent inquiry into the defendant’s request for a competency evaluation was
inadequate, when that issue had not been raised or briefed by the parties?’’;
(2) ‘‘If so, did the Appellate Court properly determine that the trial court
had inadequately inquired into the defendant’s request for a competency
evaluation?’’; and (3) ‘‘Assuming the first two questions are answered in
the affirmative, did the Appellate Court properly reverse the defendant’s
conviction and order a hearing to determine whether a competency evalua-
tion is required?’’ State v. Dort, 

, 

 (2012).
   4
     We requested that the parties provide supplemental briefing prior to oral
argument to determine what impact, if any, this court’s recent decision in
Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 

, 162–63, 

 (2014), had on the resolution of
this certified question. After hearing from the parties, we conclude that,
upon further reflection, the Appellate Court did not reach out and decide
an issue that had been inadequately briefed. Therefore, we conclude that
Blumberg Associates Worldwide, Inc. does not control the present case.
   5
     The only restriction on the information to be presented to the court by
either party is that ‘‘no treatment information contained in the Department
of Mental Health and Addiction Services’ database of treatment episodes
may be included in the written report or introduced at the hearing unless
the defendant released the treatment information . . . .’’ General Statutes
§ 54-56d (e).
   6
     We note that the state contends that it could have potentially provided
the court with factual representations with even greater specificity because
it claims that such allegations, even if they contained or were based on
confidential communications between defense counsel and his client, would
not have been subject to the attorney-client privilege. Because we conclude
that defense counsel’s representations actually made to the court were
sufficient, if true, to qualify as substantial evidence of the defendant’s mental
impairment, we need not decide this issue.
   7
     General Statutes § 53a-101 provides in relevant part: ‘‘(a) A person is
guilty of burglary in the first degree when (1) such person enters or remains
unlawfully in a building with intent to commit a crime therein and is armed
with explosives or a deadly weapon or dangerous instrument . . . .’’
   8
     General Statutes (Supp. 2014) § 53a-92a provides in relevant part: ‘‘(a)
A person is guilty of kidnapping in the first degree with a firearm when
such person commits kidnapping in the first degree as provided in section
53a-92, and in the commission of said crime such person uses or is armed
with and threatens the use of or displays or represents by such person’s
words or conduct that he possesses a pistol, revolver, machine gun, shotgun,
rifle or other firearm. . . .’’
   We note that § 53a-92a was amended by No. 13-28, § 2, of the 2013 Public
Acts, which made technical changes to the statute that are not relevant to
this appeal. In the interest of simplicity, we refer to the 2014 supplement
of the statute.
   9
     General Statutes § 53a-101 provides in relevant part: ‘‘(a) A person is
guilty of burglary in the first degree when . . . (2) such person enters or
remains unlawfully in a building with intent to commit a crime therein
and, in the course of committing the offense, intentionally, knowingly or
recklessly inflicts or attempts to inflict bodily injury on anyone . . . .’’
   10
      General Statutes § 53a-64bb (a) provides: ‘‘A person is guilty of strangula-
tion in the second degree when such person restrains another person by
the neck or throat with the intent to impede the ability of such other person
to breathe or restrict blood circulation of such other person and such
person impedes the ability of such other person to breathe or restricts blood
circulation of such other person.’’
   11
      General Statutes § 53a-92 provides in relevant part: ‘‘(a) A person is
guilty of kidnapping in the first degree when he abducts another person
and . . . (2) he restrains the person abducted with intent to . . . (C) terror-
ize him or a third person . . . .’’
   12
      We note that the state contends that ‘‘[t]he fact that the state’s final
substitute information did not include crimes involving operable firearms,
deadly weapons, or dangerous instruments does not alter the analysis
. . . .’’ We do not agree. The essential elements of the substitute charges
did not require the state to prove either that the defendant (1) had been in
possession of a deadly weapon or dangerous instrument, or (2) represented
by words or actions that he was in possession of a firearm. See footnotes
9, 10 and 11 of this opinion. Thus, the existence, or lack thereof, of a
dangerous instrument, deadly weapon, or firearm was irrelevant to the final
substituted charges against the defendant.