State v. Dyous ( 2014 )

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STATE OF CONNECTICUT v. ANTHONY DYOUS
(AC 35670)
Lavine, Prescott and West, Js.
Argued May 19—officially released September 30, 2014
(Appeal from Superior Court, judicial district of
Windham, Boland, J.)
Robert E. Byron, assigned counsel, for the appel-
lant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Patricia M. Froehlich,
state’s attorney, and Roger R. Caridad, senior assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Anthony Dyous, appeals
from the judgment of the trial court granting the state’s
second petition for an order of continued commitment
filed pursuant to General Statutes § 17a-593 (c).1 On
appeal, the defendant claims that (1) the order of contin-
ued commitment to the Psychiatric Security Review
Board (board) violates his right to equal protection as
against mentally disordered prison inmates,2 and (2) his
April 8, 2011 criminal conviction constitutes a finding
by the trial court that he is sane and, therefore, ‘‘the
state no longer has a rationale for his commitment.’’
We affirm the judgment of the trial court.
The criminal activity that led to the defendant’s initial
commitment occurred on December 28, 1983, and was
described in detail in State v. Dyous, 307 Conn. 299,
302, 53 A.3d 153 (2012) (Dyous I). We briefly recount
those facts and the procedural history that inform the
present appeal. The defendant had been hospitalized
in a psychiatric facility three times prior to December
28, 1983, when he hijacked a bus carrying forty-seven
people and threatened the driver with a bomb and nerve
gas. Id., 304. At the time, the defendant stated that God
had asked him to deliver a message. Id. On March 22,
1985, he was found not guilty by reason of mental dis-
ease or defect of two counts of kidnapping in the first
degree, two counts of threatening in the second degree,
and one count of carrying a dangerous weapon. The
defendant was committed to the custody of the Com-
missioner of Mental Health for a period not to exceed
twenty-five years. Id., 302. In March, 1985, the defendant
was transferred to the custody of the board pursuant
to General Statutes § 17a-582. Id.
Initially, the defendant was confined to Whiting
Forensic Institute (Whiting), but later was transferred
to Norwich State Hospital (Norwich). Id., 304. He
escaped from Norwich in 1986. Id. Nine months later,
he was located in Mexico, returned to Connecticut,
and readmitted to Whiting. Id. Upon readmission, the
defendant was grossly psychotic and experiencing audi-
tory and visual hallucinations, as well as grandiose and
persecutory delusions. Id. While he was at Whiting, he
was involved in a violent incident during which he,
other patients, and staff members sustained injuries. Id.
Between 1989 and 2005, the defendant moved
between Whiting, Norwich, and Connecticut Valley Hos-
pital. Id., 304–305. Between 1990 and 1992, he was
granted a number of temporary leaves that were termi-
nated when he tested positive for cocaine. Id., 305. In
1996, the defendant exhibited signs of psychosis and
admitted that he had not been taking his antipsychotic
medication. Id. He was admitted to Connecticut Valley
Hospital, but he refused to take his medication. He
later escaped. When he was found, he was returned to
Whiting, where he exhibited psychotic and paranoid
symptoms, and delusional thinking. Id. He was violent
and had to be placed in restraints. Id. The defendant’s
behavior ‘‘was characterized by chronic refusal to take
medication, irritability, mood lability, grandiosity, para-
noid ideation, rule breaking, physical altercations with
peers and refusal to engage meaningfully in treatment.’’
(Internal quotation marks omitted.) Id.
In October, 2003, the defendant filed an application
for discharge from the custody of the board that was
denied by the court, Foley, J. The defendant filed a
second application for discharge from the custody of
the board in March, 2007, that was denied by the court,
Swords, J. On April 27, 2009, the state filed a petition
for an order of the defendant’s continued commitment
to the board. The defendant filed a motion to dismiss
the petition and a supplemental motion to dismiss the
petition in February, 2010. Judge Swords held a hearing
on the second petition and the defendant’s motions to
dismiss on February 24, 2010. The court granted the
state’s petition for an order of continued commitment
and denied the defendant’s motions to dismiss. The
defendant appealed from the judgment of continued
commitment. Our Supreme Court affirmed that judg-
ment in Dyous I.
On April 24, 2012, the state filed a second petition
for an order of continued commitment on the ground
that the defendant ‘‘remains mentally ill to the extent
that his discharge [from the board’s jurisdiction] would
constitute a danger to himself or others.’’ The case was
tried to the court, Boland, J., on February 28, 2013, and
March 15, 2013.3 The court granted the state’s second
petition and recommitted the defendant to the custody
of the board until March 18, 2018.
In ruling on the second petition for continued com-
mitment, Judge Boland found that since July, 2004, the
defendant has refused to provide a DNA sample as
required by General Statutes § 54-102g. For eighteen
months, he consistently refused to take his medication.
He remained symptomatic, but not to a degree that
required the involuntary administration of medication.
Nonetheless, the defendant’s cooperation improved and
his aggressive behavior diminished so that in July, 2006,
he was transferred to Dutcher Hall at Connecticut Val-
ley Hospital and was permitted to move about the cam-
pus without an escort. In January, 2009, the defendant’s
anger and resentment about his ongoing hospitalization,
however, resulted in a notable deterioration in his con-
dition despite therapeutic intervention. The court found
that the defendant insisted that he ‘‘could make it on
his own without medication and without the oversight
of the medical profession.’’
Although he noted the defendant’s prior history,
Judge Boland gave greater weight to events that have
occurred since the 2010 extension of the defendant’s
commitment. In March, 2010, the defendant described
himself as a ‘‘P.O.W.,’’ who was being held in violation of
human rights standards. On April 26, 2010, he assaulted
another patient by hitting the patient with a radio, lead-
ing to his conviction on April 8, 2011, of assault in the
third degree. Chemical tests administered at about that
time revealed that for more than two years, the defen-
dant falsely had indicated that he was taking his medica-
tion; he surreptitiously was spitting out the pills.
The court found the following events outlined in the
board’s report. On December 29, 2010, the defendant
pushed another patient to the floor and grabbed the
patient by the throat. The incident ended only when
hospital police intervened. In March, 2011, a female
patient complained of the defendant’s behavior, which
was ‘‘characterized as sexual harassment and unwel-
come (but not, apparently, criminal) touching.’’
Between March, 2010, and June, 2012, the defendant’s
posture toward the medical staff was influenced by his
belief that his commitment was illegal. He refused to
engage in therapy or to take his medication. The staff
determined that the defendant continued to be mentally
ill and in need of medical attention. In June, 2012, the
defendant exhibited greater cooperation and self-con-
trol, but he continued to refuse to take his medication.
The results of the defendant’s September 15, 2012 psy-
chological assessment revealed that he had no current
acute symptoms of bipolar disorder, and that, within an
institutional setting he has refrained from using alcohol
and illegal drugs.
At the hearing on the second petition to extend the
defendant’s commitment, the board’s report to the court
was placed into evidence, and Mahboob Aslam, the
defendant’s treating psychiatrist, testified. The court
noted Aslam’s expert testimony that ‘‘interepisodal
recovery while a patient remains in a highly structured
environment is common; equally common . . . is the
predictability of a relapse when a person leaves that
structure,’’ as the person lacks insight into his malady,
and resists taking medication and continuing in therapy.
In its memorandum of decision, the court found that
a clinical consensus existed that the defendant remains
mentally ill and, despite his present state of relative
lucidity, needs medication, which he refuses to take,
and support, which he rejects. The court also found
that if the defendant is to become a person who is not
a danger to himself or others, he needs to take his
medication and accept support. The court found by
clear and convincing evidence that, at the time of the
hearing, the defendant presented a danger to himself
or to others such that he would be a risk of imminent
physical injury to others or to himself if he were
released.4 The court granted the petition and extended
the defendant’s commitment to the board until March
18, 2018. The defendant appealed.
I
The defendant claims that, by granting the state’s
second petition for his continued commitment, the
court violated ‘‘his equal protection rights as against
mentally disordered prison inmates who are not subject
to unwilling continued confinement.’’5 The defendant’s
claim fails, as the record is inadequate for our review.
At the hearing on the second petition to extend the
defendant’s commitment, following the state’s presen-
tation of evidence, the defendant presented no evi-
dence, despite the fact that the court had continued
the hearing to enable him to do so. See footnote 3 of
this opinion. During his final argument, counsel for
the defendant stated in part that the defendant’s case
presented an equitable issue, but he was not ‘‘going to
phrase it in terms of equal protection because [Dyous
I] pretty much put paid to that.6 But there is an issue
of fundamental fairness as [the defendant] stands in
relation to people similarly situated in a prison system.
Now, as Your Honor well knows, mental disorder is a
big problem with inmates. The office of personnel and
management put out a recidivism report in 2010. And
one of the focuses of that report was a cohort of men-
tally disordered patients . . . inmates who had been
released during the year 2005.
‘‘Now, there were 1500 . . . inmates diagnosed as
severely mentally disordered who were released. Now,
[the] Department of Correction doesn’t give diagnoses.
They give what they call MPH levels, and those go to
the severity of the mental disorder. Now, of those
1500—those 1500 were rated MPH-4 and MPH-5. MPH-4
describes inmates who . . . have intensive psychiatric
problems and who are probably on psychotropic medi-
cation. MPH-5 describes inmates who are in crises
states and who require twenty-four hour nursing care.
[The defendant] is neither of those. [He] doesn’t take
psychotropic medication. He’s certainly not in any kind
of crisis state. He doesn’t take twenty-four hour nursing
care. [The defendant’s] problem, insofar as the system
is concerned, is not mental, it’s behavioral.
‘‘When considering whether to release [the defen-
dant] . . . one of the factors to consider is whether it
is fair to keep [him] confined when the system will
release 1500 mentally disordered inmates in one year
who are profoundly more psychiatrically disordered
than [he is].’’ (Footnote added.)
Counsel for the defendant later stated: ‘‘I think the
court can and probably should consider what happens
with people released from the correction system. And
now those 1500 inmates, probably half of whom . . .
had a very high recidivism rate. In fact, the recidivism
rate for that cohort, that the recidivism study for 2010
. . . was 67 percent, and the rate for people with mental
disorders was higher than that. Now, that’s in contrast
to the recidivism rate for people going through Connect-
icut Valley Hospital under the jurisdiction of the
[board]. Now, the [board] in its report of 2009–2010
. . . indicates that its recidivism rate for acquittees on
conditional release for that year was zero.’’
Counsel for the defendant continued: ‘‘The point of all
that is that, that kind of macro consideration, combined
with [the defendant’s] record of nonoffending when he’s
been out in the community, establish[es] a reasonable
probability that he won’t reoffend. Even if he relapses,
given what happened to him on his escapes, he still
won’t reoffend.’’
In its memorandum of decision, the court stated, in
part, ‘‘[i]n closing argument, counsel for [the defendant]
made a spirited case that [the defendant] ought to be
released on equitable grounds, citing claimed practices
of the Department of Correction applicable to prisoners
under its jurisdiction with mental illness diagnoses. The
factual basis of that claim was not established, but
even if true, what policies inhere in that situation are not
those which govern resolution of the instant question.’’
(Emphasis added.) Moreover, the court found that
defense counsel’s argument that the defendant ‘‘has
done well at times during his years of confinement, and
even at times of temporary release into the community,
are inadequate to offset the voluminous evidence that
such releases have led to further problems, and that
those problems have repeatedly been serious and pro-
bative of the need to continue his commitment to the
board.’’
In his brief on appeal, the defendant states that the
present ‘‘case revisits the continuing commitment of
the defendant . . . recently the subject of [Dyous I],’’
which upheld the 2010 judgment continuing his commit-
ment to 2013.7 The present appeal, he states, ‘‘argues
issues not presented to the court in’’ Dyous I. He con-
tends that the present issue is whether the order contin-
uing his commitment violated his equal protection
rights as against mentally disordered prison inmates
who are not subject to unwilling continued confine-
ment. The defendant also contends that that issue
requires ‘‘a determination as to whether recommitting
acquittees, who tend not to reoffend, serves to ‘protect
society,’ as expressed in General Statutes § 17a-593,
when the state releases disordered prison inmates who
reoffend at rates not only higher than acquittees, but
higher than inmates without disorder. Attention as well
should be given to how this disparate treatment ‘pro-
tects society’ when it works to discredit the process of
treatment obtained through the criminal justice system
by way of claiming the defense of mental disease or
defect, such that the offenders who need treatment
forgo it so as not to be confined indefinitely, even
though forgoing treatment raises the likelihood they
will reoffend.’’8 It appears to us that the defendant is
challenging the factual premise on which § 17a-593 (c)
is predicated, i.e., to protect society from acquittees,
and our Supreme Court’s finding that the statute with-
stands intermediate scrutiny with regard to the defen-
dant’s constitutional right to equal protection. See State
v. Dyous, supra, 307 Conn. 303.
On appeal, the defendant recognizes that he may not
have raised the equal protection claim clearly at the
hearing on the second petition for his continued com-
mitment, and he seeks reversal of his commitment pur-
suant to State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989). We construe the defendant’s statement
as a concession that the equal protection claim was
not raised at trial. We are unable to review the claim,
however, because the record is inadequate.
‘‘In Golding, our Supreme Court held that a defendant
can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation clearly exists and
clearly deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail.’’ (Emphasis added; internal quotation marks omit-
ted.) State v. Daniel G., 147 Conn. App. 523, 539, 84
A.3d 9, cert. denied, 311 Conn. 931, 87 A.3d 579 (2014).
‘‘[U]nless the defendant has satisfied the first Golding
prong, that is, unless the defendant has demonstrated
that the record is adequate for appellate review, the
appellate tribunal will not consider the merits of the
defendant’s claim. . . . [I]n the absence of a sufficient
record, there is no way to know whether a violation of
constitutional magnitude in fact has occurred. . . .
Thus, as [our Supreme Court] stated in Golding, we
will not address an unpreserved constitutional claim
[i]f the facts revealed by the record are insufficient,
unclear or ambiguous as to whether a constitutional
violation has occurred . . . .’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Joseph, 150 Conn.
App. 867, 869–70, 93 A.3d 1174 (2014).
As the trial court found, the defendant presented no
evidence at the trial. Nonetheless, the defendant argued
to the trial court that the recidivism rate of persons
who have been found not guilty of crimes on the ground
of mental disease and defect is lower than that of
inmates who are mentally disordered and released. It
is well known that the arguments of counsel are not
evidence. See State v. Begley, 122 Conn. App. 546, 552
n.10, 2 A.3d 1 (2010). In its memorandum of decision,
the court acknowledged the defendant’s argument but
found that there was no evidentiary basis to support
it.9 We conclude that not only did the defendant fail to
clearly articulate his claim during his argument, he also
did not litigate it.10 To permit a party to raise a claim
on appeal that was not properly presented at trial is
unfair to both the trial court and the parties, and
amounts to trial by ambuscade. See, e.g., State v. Hol-
loway, 117 Conn. App. 798, 814, 982 A.2d 231 (2009),
cert. denied, 297 Conn. 925, 998 A.2d 1194 (2010).
Because the record is inadequate for review, the defen-
dant’s claim fails.
II
The defendant’s second claim is that his April 8, 2011
conviction of assault in the third degree in violation of
General Statutes § 53a-61 constitutes a finding by the
trial court that he is sane and, that being so, ‘‘the state
has lost its rationale to keep him committed.’’ We
disagree.
In its memorandum of decision issued with respect
to the second petition to extend the defendant’s com-
mitment to the board, the court stated that the question
before it was whether the defendant ‘‘is at present a
danger to himself or others.’’ In its memorandum of
decision, the court concluded by stating that it had
found by clear and convincing evidence that the defen-
dant, ‘‘at the time of this hearing, presents a danger to
himself or to others such that to release him at this
time would risk imminent physical injury to others or
to himself, or the risk of loss or destruction of the
property of others.’’ The court therefore granted the
petition and extended the defendant’s commitment to
the board until March 18, 2018.
Counsel for the defendant began his final argument
to the trial court by stating: ‘‘Your Honor, I obviously
cannot argue that [the defendant] does not have a men-
tal disorder. But neither the [board’s] report to the
court, nor . . . Aslam’s testimony, demonstrate that
he’s insane.’’ Here on appeal, the defendant claims that
because he was convicted of assault in the third degree
in April, 2011, he is sane. Again, the defendant has raised
a claim for which he presented no evidence at trial.
‘‘It is well established that this court can take judicial
notice of facts contained in the files of the Superior
Court.’’ (Internal quotation marks omitted.) State v.
Santiago, 142 Conn. App. 582, 592 n.12, 64 A.3d 832,
cert. denied, 309 Conn. 911, 69 A.3d 307 (2013). We
have taken judicial notice of the file in the defendant’s
April 8, 2011 conviction of assault in the third degree.
See State v. Dyous, Superior Court, judicial district of
Middlesex, Docket No. CR-10-0192091-S (April 8, 2011).
On April 26, 2010, the defendant was charged with
assault in the second degree and disorderly conduct
for attacking another patient at Connecticut Valley Hos-
pital. He did not assert the affirmative defense of not
guilty by reason of mental disease or defect pursuant
to General Statutes § 53a-13. Consequently, there was
no adjudication of the defendant’s mental state at the
time he was convicted.11
Moreover, the defendant’s claim that he is sane and
therefore should be released from the custody of the
board is logically flawed. The court found that the evi-
dence presented at the hearing demonstrates that the
defendant is mentally ill to the extent that he poses
a danger to himself or to society if discharged. The
defendant has not challenged that finding; in fact, he
concedes that he has a mental illness.
Moreover, the defendant’s April 8, 2011 conviction
of having assaulted another patient is further evidence
that, even within the structure provided by Connecticut
Valley Hospital, he presents a danger to others. ‘‘The
fact that a person has been found, beyond a reasonable
doubt, to have committed a criminal act certainly indi-
cates dangerousness. See Lynch v. Overholser, 369 U.S.
705, 714 [82 S. Ct. 1063, 8 L. Ed. 2d 211] (1962) (The
fact that the accused was found to have committed a
criminal act is strong evidence that his continued liberty
could imperil the preservation of public peace). Indeed,
this concrete evidence generally may be at least as
persuasive as any predictions about dangerousness that
might be made in a civil commitment-proceeding.’’
(Footnote omitted; internal quotation marks omitted.)
Jones v. United States, 463 U.S. 354, 364, 103 S. Ct.
3043, 77 L. Ed. 2d 694 (1962).
In the present case, the defendant does not claim,
nor has he demonstrated, that the court’s finding that
he presents a danger to himself or to others such that
to release him at this time would risk imminent physical
injury to others or to himself, or the risk of loss or
destruction of the property of others, is clearly errone-
ous, recidivism rates notwithstanding. We therefore
conclude that the court properly granted the second
petition to extend the defendant’s commitment to the
board.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 17a-593 (c) provides in relevant part: ‘‘If reasonable
cause exists to believe that the acquittee remains a person with psychiatric
disabilities . . . to the extent that his discharge at the expiration of his
maximum term of commitment [from the jurisdiction of the board] would
constitute a danger to himself or others, the state’s attorney, at least one
hundred thirty-five days prior to such expiration, may petition the court for
an order of continued commitment of the acquittee.’’
2
Pursuant to General Statutes § 17a-515, mentally disordered inmates are
subject to the commitment proceedings as set forth in General Statutes
§ 17a-498 (c), which provides in relevant part: ‘‘If, on such hearing, the court
finds by clear and convincing evidence that the person complained of has
psychiatric disabilities and is dangerous to himself or herself or others or
gravely disabled, it shall make an order for his or her commitment, consider-
ing whether or not a less restrictive placement is available, to a hospital
for psychiatric disabilities to be named in such order, there to be confined
for the period of the duration of such psychiatric disabilities or until he or
she is discharged or converted to voluntary status pursuant to section 17a-
506 in due course of law. . . .’’
3
The state presented evidence on February 28, 2013, and the court contin-
ued the matter until March 15, 2013, to permit the defendant to present
expert testimony. On March 15, 2013, counsel for the defendant informed
the court and the state that the defendant would present no evidence.
4
The court found that the defendant has a compound mental health diagno-
sis: in Axis I, bipolar I disorder, cannabis abuse in remission, alcohol abuse
in remission, and in Axis Il, personality disorder not otherwise specified
with antisocial and narcissistic traits.
5
The state claims that the defendant’s equal protection claim is res judicata
by virtue of our Supreme Court’s decision in Dyous I. We need not reach
the state’s argument, as the defendant seeks review of his claim pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), and we
conclude that the record is inadequate for our review.
6
The words ‘‘pretty much put paid to that’’ accurately reflect the transcript
of the defense counsel’s argument.
7
To summarize substantially, in Dyous I, our Supreme Court concluded
that the defendant’s right to equal protection was not violated when com-
pared with the rights of inmates who are civilly committed. State v. Dyous,
supra, 307 Conn. 299. The court acknowledged that the system devised by
the legislature ‘‘tilts’’ more strongly toward confinement for acquittees than
civilly committed inmates. Id., 325. This is so because the legislature directed
the Superior Court and the board to consider its primary concern to be ‘‘ ‘the
protection of society . . . .’ ’’ Id., 323. In civil commitment proceedings, the
legislature ‘‘has directed physicians providing opinions to the Probate Court
to consider whether or not less restrictive placement is recommended and
available . . . .’’ (Citations omitted; internal quotation marks omitted.) Id.
The court stated that ‘‘[i]t is undisputed that the continued commitment
procedure that is applicable to insanity acquittees serves the important
governmental interests of protecting society and affording acquittees proper
psychiatric treatment.’’ Id., 326. The court did not ‘‘examine the various
restrictions that the system imposes on insanity acquittees once they have
been recommitted’’; id.; but focused ‘‘instead on the fact that the system
applicable to insanity acquittees renders their recommitment easier for the
state to obtain in the first place. If that fundamental disparity withstands
intermediate scrutiny, so must the lesser disparities that accompany it.’’ Id.
The issue was ‘‘whether subjecting no one but acquittees to a recommitment
procedure that operates in a way that its primary concern is to protect society
. . . substantially relates to the achievement of either of the aforementioned
governmental interests.’’ Id., 326–27. The state bears the burden of establish-
ing the relationship between the nature of the problem and the legislative
remedy, but not to a scientific certainty. Id., 327. ‘‘[I]n judging the closeness
of the relationship between the means chosen . . . and the government’s
interest, three interrelated concepts must be considered: the factual prem-
ises which prompted the legislative enactment, the logical connection
between the remedy and those factual premises, and the breadth of the
remedy chosen.’’ (Internal quotation marks omitted.) Id., citing Ramos v.
Vernon, 353 F.3d 171, 183 (2d Cir. 2003).
Our Supreme Court rejected the defendant’s claim that § 17a-593 (c) is
unconstitutional as applied to him because it agreed with the state that
‘‘subjecting the defendant to a recommitment procedure that tilts more
strongly in favor of commitment than does its civil counterpart substantially
relates to the achievement of the important governmental interest of pro-
tecting society.’’ Id., 327. ‘‘The factual premise undergirding § 17a-593 is that
the defendant’s prospective release raises a special concern for public safety.
This concern arises because of two key facts; first, the defendant suffers from
a long-standing mental illness that has persisted despite years of intensive
treatment; and, second, the defendant previously was adjudicated to have
committed a crime—indeed, a dangerous crime—as a result of his mental
illness.’’ Id., 328.
8
In his appellate brief and appendix, the defendant relies on a wide variety
of policy arguments, purported studies, government statistics, psychiatric
journals, unproven assertions, and the like, to support his argument, includ-
ing his claim that acquittees are being unfairly subjected to longer periods
of confinement than inmates not civilly committed. In its brief, the state
requests that we not consider the information in the defendant’s footnotes
and appendix, as it is not part of the record. Many of the defendant’s
assertions require factual findings, which were not made by the trial court,
as the defendant presented no evidence.
9
The defendant does not claim that the court’s finding that he presented
no evidence is clearly erroneous.
10
In the appendix to his appellate brief, the defendant has submitted
photocopies of recidivism studies, portions of the Diagnostic and Statistical
Manual of Mental Disorders (2013), and other reports and articles. Docu-
ments and reports not admitted as evidence at trial are not properly before
this court, as they are not part of the trial court record. A reviewing court
cannot go beyond the proper record before it in the determination of issues
presented on appeal. See Grunschlag v. Ethel Walker School, Inc., 189 Conn.
316, 320, 455 A.2d 1332 (1983). ‘‘It is axiomatic that this court does not take
evidence and does not make factual determinations.’’ Argentinis v. Fortuna,
134 Conn. App. 538, 544, 39 A.3d 1207 (2012). The state argues that because
the documents are not part of the record, this court should not consider
them, citing State v. Enrique F., 146 Conn. App. 820, 833 n.7, 79 A.3d 141
(2013), cert. denied, 311 Conn. 903, 83 A.3d 350 (2014). We agree with the
state and have not considered the materials in the defendant’s appendix.
11
The trial court, Handy, J., ordered a competency evaluation of the
defendant. Thereafter, the defendant and the state stipulated to the content
of the evaluation report and waived a competency hearing for the defendant.
The court found that the defendant was competent to assist in his defense.
Thereafter, the defendant pleaded guilty to assault in the third degree under
the Alford doctrine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,
27 L. Ed. 2d 162 (1970). The court granted an order of conditional discharge.
Our Supreme Court has stated that ‘‘[c]ompetence to stand trial . . . is
not defined in terms of mental illness. An accused may be suffering from
a mental illness and nonetheless be able to understand the charges against
him and to assist in his own defense . . . and the fact that [a] defendant
was receiving medication and would require medication during the course
of the trial does not render him incompetent. . . . A fortiori, a finding of
mental illness is not required for a court to find a defendant incompetent
to stand trial.’’ (Citations omitted; internal quotation marks omitted.) State
v. Bigelow, 120 Conn. App. 632, 642–43, 994 A.2d 204, cert. denied, 297 Conn.
916, 996 A.2d 278 (2010); see State v. DeAngelis, 200 Conn. 224, 230, 511
A.2d 310 (1986). Conversely, a defendant who suffers from mental illness
is not necessarily incompetent to stand trial.