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State v. Ross--CONCURRENCE

DRANGINIS, J., concurring in the judgment. In concurring in today's judgment, I in no way am abandoning my belief, or the reasoning underlying it, that our statutory scheme does not permit a death sentenced defendant to waive the benefit that could result from the consolidated habeas litigation, ordered by this court, challenging the constitutionality of the administration of Connecticut's death penalty system. See In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 676, 717, 866 A.2d 554 (2005) (Lavery and Dranginis, Js., dissenting). Nonetheless, because that issue presently is not before the court, I do not base my decision today on that issue. Rather, I address solely the issues with which we are confronted and those that are necessary to our resolution of the claims on appeal. The court today develops a new rule limiting the ability of a defendant to challenge as involuntary any waiver of a constitutional right. Because I believe that it is unnecessary for this court to decide the issue and because I believe that such a general rule is unwise, I decline to join in the court's opinion. In so far as the court has concluded that special counsel has standing to appeal the trial court's ruling, I join with the court. I also adopt, for purposes of this opinion, the majority's recitation of the facts and procedural history of this case. I agree with the majority that, although special counsel has framed the issue as one of voluntariness, the arguments made by special counsel are dependent on challenging the subsidiary facts found by the trial court that underlie its determination that the defendant's mental disorders, taken separately or together, do not affect substantially his ability to make rational choices. This argument challenges the factual determination of the defendant's volitional capacity as it relates to his competence, not whether, as a matter of law, his waiver was voluntary. See Rumbaugh v. Procunier, 753 F.2d 395, 399 (5th Cir.) (determination as to whether defendant suffers from mental disease that impairs his ability to make rational decision to waive further challenges to death sentence must be accepted unless clearly erroneous), cert. denied sub nom. Rumbaugh v. McCotter, 473 U.S. 919, 105 S. Ct. 3544, 87 L. Ed. 2d 668 (1985). As the majority has noted, our standard of review, therefore, on the issue of volitional capacity as it relates to the defendant's competence is whether the trial court's finding that the defendant has volitional capacity was clearly erroneous. Id.; see also Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 109 L. Ed. 2d 762 (1990) (state court's conclusion regarding defendant's competency to waive further challenges to death sentence is finding of fact entitled to presumption of cor-

rectness). Only after the court concludes that the defendant is competent because he possesses volitional capacity, do we review the trial court's conclusion that the defendant's waiver was voluntary under a de novo standard of review. See State v. Cobb 251 Conn. 285, 358

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