State v. Vasquez ( 2019 )

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STATE OF CONNECTICUT v. RUBEN VASQUEZ
(AC 42147)
Bright, Moll and Bishop, Js.
Syllabus
The acquittee, who had been found not guilty of certain crimes by reason
of mental disease or defect, appealed to this court from the judgment
of the trial court denying his application for discharge from the jurisdic-
tion of the Psychiatric Security Review Board. He claimed that the
diagnoses attributed to him—cannabis induced psychotic episode, an
acute intoxication now in full remission, cannabis use disorder in remis-
sion in a controlled environment, and alcohol use disorder in remission
in a controlled environment—are not considered mental illnesses and,
thus, do not constitute psychiatric disabilities pursuant to the statutes
(§§ 17a-580 through 17a-602) concerning the psychiatric security review
board. Held that the trial court did not err in denying the acquittee’s
application for discharge from the jurisdiction of the board and determin-
ing that the acquittee’s diagnoses constituted psychiatric disabilities
under §§ 17a-580 through 17a-602; that court’s finding that the acquittee
was mentally ill, suffered from a substance induced psychotic disorder
and, thus, suffered from more than mere substance abuse was not clearly
erroneous, as the court, in making that finding, considered testimony
from a treating forensic psychiatrist, as well as the acquittee’s history
under the supervision of the board, his anxious and impulsive behavior
over the past eight years, the nature of and circumstances surrounding
his criminal conduct in assaulting and attempting to assault individuals,
his need for continued therapy and supervision, his refusal to consider
medication as recommended and his lack of compliance and honesty
with staff members and treaters, and on the basis of the totality of the
evidence, the court determined that if the acquittee were to be released
from the board’s supervision entirely, he would under those circum-
stances present a danger to himself or others.
Argued September 24—officially released December 17, 2019
Procedural History
Application for discharge from the jurisdiction of the
psychiatric security review board, brought to the Supe-
rior Court in the judicial district of Hartford and tried
to the court, D’Addabbo, J.; judgment dismissing the
application, from which the acquittee appealed to this
court. Affirmed.
Monte P. Radler, public defender, with whom was
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (acquittee).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, Vicki
Melchiorre, supervisory assistant state’s attorney, and
Adam B. Scott, supervisory assistant state’s attorney,
for the appellee (state).
Opinion
BISHOP, J. The acquittee,1 Ruben Vasquez, appeals
from the judgment of the trial court denying his applica-
tion for discharge from the jurisdiction of the Psychiat-
ric Security Review Board (board).2 On appeal, the
acquittee claims that the court erred in denying his
application for discharge because the diagnoses attrib-
uted to him—cannabis induced psychotic episode, an
acute intoxication now in full remission; cannabis use
disorder in remission in a controlled environment; and
alcohol use disorder in remission in a controlled envi-
ronment—are not considered mental illnesses and,
thus, do not constitute psychiatric disabilities under
General Statutes §§ 17a-580 through 17a-602 (board
statutes). We affirm the judgment of the court.
The following facts and procedural history are rele-
vant to our analysis. ‘‘[On July 14, 2009, the acquittee]
. . . randomly attack[ed] five young individuals, with
a four foot six inch [one by four] hard yellow pine
pressure treated board. Two of the young individuals
attacked were a three and one year old child. While
being taken into custody, [the acquittee] physically
attacked a police officer.’’
The acquittee was charged with four counts of assault
in the second degree in violation of General Statutes
§ 53a-60 (a) (2), two counts of risk of injury to a child
in violation of General Statutes § 53-21 (a) (1), four
counts of criminal attempt to commit assault in the first
degree in violation of General Statutes §§ 53a-49 and
53a-50 (a) (1), and two counts of assault of a peace
officer in violation of General Statutes § 53a-167c (a)
(1).3 On June 7, 2011, the acquittee was found not guilty
by reason of mental disease or defect pursuant to Gen-
eral Statutes § 53a-13.4 On August 8, 2011, the court,
Randolph, J., committed the acquittee to the jurisdic-
tion of the board and ordered that he be confined at
Dutcher Service on the campus of the Connecticut Val-
ley Hospital for a period not to exceed fifteen years.
On July 25, 2017, in accordance with § 17a-593 (a),
the acquittee filed an application with the court seeking
discharge from the jurisdiction of the board. The court
forwarded the application to the board, which held a
hearing on September 15, 2017, pursuant to General
Statutes § 17a-593 (d). On October 26, 2017, the board
filed its report with the court recommending that the
acquittee not be discharged because ‘‘[a]lthough [the
acquittee’s] psychotic symptoms have not been active
since his commitment to the [b]oard, he has repeatedly
demonstrated poor judgment, impulsivity, deceitfulness
and rule breaking behavior. He has disregarded the
rules and protocols in a hospital setting, thereby jeop-
ardizing the [t]emporary [l]eave that would have permit-
ted [the acquittee] to transition to the community. [The
acquittee’s] treatment team has recommended he con-
sider medication to assist with some of his problematic
behaviors, but he has declined the recommendation.’’
In addition, in its report filed with the court, the board
discussed the acquittee’s risk factors, stating that ‘‘[a]
significant risk factor for [the acquittee] remains his
history of substance use. As testimony indicated, a sub-
stance use relapse would increase [the acquittee’s] risk
for a re-emergence of his psychotic symptoms. Testi-
mony noted that stress has the potential to exacerbate
[the acquittee’s] risk of relapse. If discharged from the
jurisdiction of the [b]oard, [the acquittee] would return
to the community without an established support net-
work. Given that [the acquittee’s] psychotic symptoms
are intimately tied to his substance use, and [that the
acquittee] failed to conform his behavior appropriately
in a supervised inpatient setting, the [b]oard finds that
[the acquittee’s] risk for a substance abuse relapse in
a nonsupervised setting without an established commu-
nity support network is significant. Therefore, the
[b]oard finds that [the acquittee] cannot reside safely
in the community without [b]oard oversight and should
remain under the supervision and jurisdiction of the
[b]oard.’’
On May 29, 2018, after receiving the report, the court,
D’Addabbo, J., held a hearing on the acquittee’s applica-
tion for discharge pursuant to § 17a-593 (f). The court
heard testimony from the following individuals: Maya
Prabhu, M.D., consultant to the Department of Mental
Health & Addiction Services; the acquittee; and Larry
Spencer of the Capitol Region Mental Health Center.
The court concluded the evidentiary portion of the hear-
ing on May 29, 2018, and heard arguments from the
parties’ respective counsel on June 18, 2018.
On July 27, 2018, the court issued a memorandum of
decision denying the acquittee’s application for dis-
charge, concluding that, on the basis of the evidence
presented at the May 29, 2018 hearing, the acquittee
has ‘‘psychiatric disabilities’’ and ‘‘if . . . released from
the [b]oard’s supervision entirely . . . would . . .
present a danger to himself or others.’’ This appeal
followed. Additional facts will be set forth as necessary.
The acquittee claims that the court erred in denying
his application for discharge because the diagnoses
attributed to him—cannabis induced psychotic episode,
an acute intoxication now in full remission; cannabis
use disorder in remission in a controlled environment;
and alcohol use disorder in remission in a controlled
environment—are not considered mental illnesses and,
thus, are not psychiatric disabilities under the board
statutes. In making this claim, the acquittee invites this
court to overlook our Supreme Court’s decision in State
v. March, 265 Conn. 697, 830 A.2d 212 (2003), and this
court’s decision in State v. Kalman, 88 Conn. App. 125,
868 A.2d 766, cert. denied, 273 Conn. 938, 875 A.2d 44
(2005), and to conclude that, because his diagnoses are
based on substance and alcohol abuse, they cannot be
considered mental illnesses or psychiatric disabilities
under the board statutes. We are not persuaded.
We first review the statutory procedure relevant to
an application for discharge by an acquittee from the
jurisdiction of the board. When an individual is found
not guilty by reason of mental disease or defect, the
individual—the acquittee—is committed to the custody
of the Commissioner of Mental Health and Addiction
Services for examination of the acquittee’s mental con-
dition. General Statues § 17a-582 (a). Once the examina-
tion is complete, a hearing is held, and the court deter-
mines whether the examinee should be confined,5
conditionally released,6 or discharged.7 General Statutes
§ 17-582 (e) (1) and (2). If the court finds that the
acquittee should be confined, the acquittee is commit-
ted to the jurisdiction of the board for a maximum term
of commitment, no longer than that which could have
been imposed if the acquittee had been convicted of
the offense. General Statutes § 17a-582 (e) (1).
After the court has committed the acquittee to the
jurisdiction of the board, the board must conduct a
hearing within ninety days to review the status of the
acquittee. General Statutes § 17a-583 (a). During the
hearing, the board must consider whether the acquittee
should continue to be confined or whether the acquittee
should be conditionally released or discharged. General
Statutes § 17a-584. The board is required to conduct
these hearings at least once every two years until the
acquittee is discharged. General Statutes § 17a-585. The
acquittee may apply to the court for discharge no sooner
than six months after the board’s initial hearing and not
more than once every six months thereafter. General
Statutes § 17a-593 (a). The court then forwards the
application for discharge to the board. Thereafter, the
board has ninety days after receiving the application
to file a report with the court setting forth findings
and conclusions as to whether the acquittee should be
discharged. General Statutes § 17a-593 (d).
Upon receiving the report, the court conducts a hear-
ing on either the recommendation from the board or the
acquittee’s application for discharge. General Statutes
§ 17a-593 (f). At the hearing, the acquittee has the bur-
den of proving by a preponderance of the evidence that
he or she should be discharged. General Statutes § 17a-
593 (g). Thereafter, the court makes a finding regarding
the mental condition of the acquittee, ‘‘considering that
its primary concern is the protection of society . . . .’’
General Statutes § 17a-593 (g). In its finding, the court
may determine either that the application for discharge
be dismissed or that the acquittee be discharged from
the board’s custody. See § 17a-593 (g).
Here, the acquittee claims that the court erred in
denying his discharge application on the ground that
his diagnoses constituted psychiatric disabilities under
the board statutes. More specifically, the acquittee
asserts that because General Statutes § 17a-458 (b) dif-
ferentiates between ‘‘persons with psychiatric disabili-
ties’’8 and ‘‘persons with substance use disorders,’’9 the
acquittee is not considered to have a ‘‘psychiatric dis-
ability.’’
Resolution of the acquittee’s claim on appeal requires
us to interpret the meaning of the terms ‘‘psychiatric
disability’’ and ‘‘mental illness’’ under the board stat-
utes, which presents a question of statutory interpreta-
tion over which our review is plenary. See State v.
March, supra, 265 Conn. 705. On the basis of our inter-
pretation of the relevant statutory scheme, we then
assess whether the court’s factual determination of the
status of the acquittee’s mental health was clearly
erroneous.
General Statutes § 17a-580 (7) provides: ‘‘ ‘Psychiatric
disability’ includes any mental illness in a state of remis-
sion when the illness may, with reasonable medical
probability, become active. ‘Psychiatric disability’ does
not include an abnormality manifested only by repeated
criminal or otherwise antisocial conduct . . . .’’
In addition, as our Supreme Court explained in State
v. March, supra, 265 Conn. 697, ‘‘[t]he statutes relevant
to this appeal, [the board statutes], are contained in
part V of chapter 319i [of our General Statutes]. . . .
General Statutes § 17a-581 (j) authorizes the board to
adopt regulations necessary to carry out the purposes
of chapter 319i. Section 17a-581-1 of the Regulations of
Connecticut State Agencies provides: These rules and
regulations will govern practice and procedure before
the [board] as authorized by [§§] 17a-580 through 17a-
602 of the General Statutes. Section 17a-581-2 (a) (11)
of the Regulations of Connecticut State Agencies cor-
responds to § 17-580 (11) of the General Statutes. [Sec-
tion 17-580 (11)] defines a person who should be dis-
charged pursuant to § 17a-593 as an acquittee who does
not have psychiatric disabilities . . . to the extent that
his discharge would constitute a danger to himself or
others . . . whereas [§ 17a-581-2 (a) (11)] provides
that ‘[p]erson who should be discharged means an
acquittee who is not mentally ill or mentally retarded
to the extent that his discharge would constitute a dan-
ger to himself or others. . . . Subsection (a) (5) of
[§ 17a-581-2] defines mental illness as follows: Mental
illness means any mental illness or mental disease as
defined by the current Diagnostic and Statistical Manual
of Mental Disorders [(DSM-V)] of the American Psychi-
atric Association and as may hereafter be amended.
. . .
‘‘Thus, it is apparent that the . . . definitions found
in § 17a-458 [b] do not apply to part V of chapter 319i
because that statute specifically enumerates the sec-
tions to which it applies and does not refer to any of
the sections in part V.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) Id.,
706–708.
Furthermore, in State v. Kalman, supra, 88 Conn.
App. 125, as in this case, the acquittee was found not
guilty of criminal charges by reason of mental defect
or disease and was committed to the jurisdiction of the
board. The acquittee in Kalman claimed that his mental
condition was ‘‘characterized by alcohol dependence,
in remission in a controlled environment; cocaine
dependence, in remission in a controlled environment’’;
and other substance induced mood disorders. Id., 134–
35. Similar to this case, the acquittee in Kalman claimed
that his diagnoses were not psychiatric disabilities
because the statutory scheme for civil commitments
applied and excluded alcohol and drug-dependent per-
sons as individuals who have mental or emotional con-
ditions. Id., 135.
This court in Kalman concluded that the civil com-
mitment statutes were not relevant to whether the
acquittee had a psychiatric disability under General
Statutes §§ 17a-580 through 17a-603. Id. Rather, this
court concluded that based on our Supreme Court’s
reasoning in State v. March, supra, 265 Conn. 708, the
definition of ‘‘psychiatric disability’’ found in the board
statutes applied. State v. Kalman, supra, 136.
On review, we are bound not only by the holdings
of Kalman and March but also by the persuasiveness
of their reasoning. First, ‘‘[i]t is axiomatic that, [a]s an
intermediate appellate court, we are bound by Supreme
Court precedent and are unable to modify it. . . . [W]e
are not at liberty to overrule or discard the decisions
of our Supreme Court but are bound by them. . . . [I]t
is not within our province to reevaluate or replace those
decisions.’’ (Internal quotation marks omitted.) State v.
Bischoff, 189 Conn. App. 119, 123, 206 A.3d 253, cert.
granted, 331 Conn. 926, 207 A.3d 28 (2019). Second,
‘‘[t]his court often has stated that this court’s policy
dictates that one panel should not, on its own, reverse
the ruling of a previous panel. The reversal may be
accomplished only if the appeal is heard en banc.’’
(Internal quotation marks omitted.) State v. Carlos P.,
171 Conn. App. 530, 545 n.12, 157 A.3d 723, cert. denied,
325 Conn. 912, 158 A.3d 321 (2017).
Because we are bound by our Supreme Court’s opin-
ion in State v. March, supra, 265 Conn. 697, and this
court’s opinion in State v. Kalman, supra, 88 Conn.
App. 125, we conclude that the court did not err in
determining that the acquittee’s diagnoses were mental
illnesses defined by the DSM-V, which constituted psy-
chiatric disabilities under the board statutes.10
In addition to our task of statutory construction, we
must also review the court’s determination of the
acquittee’s mental health condition. ‘‘The determination
as to whether an acquittee is currently mentally ill . . .
is a question of fact and, therefore, our review . . . is
governed by the clearly erroneous standard. . . . A
finding is clearly erroneous when although there is evi-
dence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed. In applying the
clearly erroneous standard to the findings of a trial
court, we keep constantly in mind that our function is
not to decide factual issues de novo. Our authority
. . . is circumscribed by the deference we must give
to decisions of the trier of fact, who is usually in a
superior position to appraise and weigh the evidence.
. . .’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Jacob, 69 Conn. App. 666, 680, 798 A.2d
974 (2002).
In reaching its conclusion that the acquittee was men-
tally ill and thus suffered from a substance induced
psychotic disorder, the court considered testimony
from Dr. Maya Prabhu, a treating forensic psychiatrist,
who has been involved with the acquittee’s psychologi-
cal treatment since his commitment to the board. Dur-
ing her testimony, Dr. Prabhu explained that the
acquittee suffered from an underlying psychosis that
was induced by substance abuse. The court found that
‘‘[a]ccording to Dr. Prabhu, [the acquittee] tends to see
his ‘crime’ as being related to substance abuse and [does
not] think he needs to be on medication for his mental
illness issues. Dr. Prabhu present[ed] the acquittee as an
individual that has difficulty with emotional regulation
when stressed. . . . During his commitment, [the
acquittee] became involved in a relationship with
another patient at Whiting Forensic. [The acquittee]
was not forthright with [Whiting Forensic staff] about
the relationship. . . . The issues related to the . . .
relationship . . . caused a stressful situation for [the
acquittee] . . . [and the acquittee] engaged in a series
of rule infractions. Dr. Prabhu testified that this relation-
ship became tempestuous and volatile. [The acquittee]
was observed . . . on the telephone with [the other
patient] engaging in volatile conversations. . . . A
review of the hospital records indicate[d] that in the
month of March 2017 there were approximately 500
telephone calls between [the acquittee] and the [other
patient]. Dr. Prabhu indicate[d] that this conduct is a
product of the acquittee’s reaction to stress. He gets
excessive, deeply anxious and frustrated. . . . In the
face of this conduct, [the acquittee] lacks acceptance
of having a mental illness. Dr. Prabhu opine[d] that
unless he has treatment, this [reaction] to stress and
resulting conduct would be a risk for him.’’
In addition to the testimony of Dr. Prabhu, the court
‘‘considered the record which includes the acquittee’s
history under the supervision of the [b]oard, his past
diagnosis, his present diagnosis, his lack of violent
behavior, his anxious and impulsive behavior over the
past eight years, the nature of and circumstances sur-
rounding his criminal conduct in assault[ing] and
attempting to assault individuals, his need [for] contin-
ued therapy and supervision, his refusal to consider
medication to assist with some problematic behavior,
previous [b]oard reports and the likelihood of any
supervision upon his release from the [b]oard’s jurisdic-
tion. [T]he court also considered . . . his lack of com-
pliance and honesty with the staff and treaters and his
surreptitious conduct with prohibited items . . . [and]
the conduct with the [other patient] and failure to abide
by instructions to cease such conduct, which led to
a termination of a temporary leave opportunity [and]
cause[d] the [c]ourt pause.’’ On the basis of the totality
of this evidence, the court determined ‘‘that if the
acquittee were to be released from the [b]oard’s supervi-
sion entirely, he would under those circumstances pres-
ent a danger to himself or others. In his current commit-
ment under the [b]oard’s supervision in his controlled
environment . . . the risks of danger to himself or [oth-
ers] are minimized.’’ On the basis of our analysis of
the applicable law and our review of the record, we
conclude that the court’s finding, consistent with the
diagnoses in both the board’s report and the doctor’s
testimony, that the acquittee suffered from more than
mere substance abuse was not clearly erroneous, and,
accordingly, that the trial court’s denial of the
acquittee’s application was legally and factually correct.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘[An] ‘[a]cquittee’ [is] any person found not guilty by reason of mental
disease or defect pursuant to section 53a-13 . . . .’’ General Statutes § 17a-
580 (1).
2
We treat the court’s denial of the acquittee’s application as a dismissal
pursuant to General Statutes § 17a-593 (g).
3
One count of assault of a peace officer subsequently was dismissed.
4
General Statutes § 53a-13 (a) provides: ‘‘In any prosecution for an offense,
it shall be an affirmative defense that the defendant, at the time he committed
the proscribed act or acts, lacked substantial capacity, as a result of mental
disease or defect, either to appreciate the wrongfulness of his conduct or
to control his conduct within the requirements of the law.’’
5
General Statutes § 17a-580 (10) defines a ‘‘[p]erson who should be con-
fined’’ as ‘‘an acquittee who has psychiatric disabilities or has intellectual
disability to the extent that such acquittee’s discharge or conditional release
would constitute a danger to the acquittee or others and who cannot be
adequately controlled with available supervisionand treatment on condi-
tional release . . . .’’
6
General Statutes § 17a-580 (9) defines a ‘‘[p]erson who should be condi-
tionally released’’ as ‘‘an acquittee who has psychiatric disabilities or has
intellectual disability to the extent that his final discharge would constitute
a danger to himself or others but who can be adequately controlled with
available supervision and treatment on conditional release . . . .’’
7
General Statutes § 17a-580 (11) defines a ‘‘[p]erson who should be dis-
charged’’ as ‘‘an acquittee who does not have psychiatric disabilities or does
not have intellectual disability to the extent that such acquittee’s discharge
would constitute a danger to the acquittee or others . . . .’’
8
General Statutes § 17a-458 (a) defines ‘‘[p]ersons with psychiatric disor-
ders’’ as ‘‘those persons who are suffering from one or more mental disorders
as defined in the most recent edition of the American Psychiatric Associa-
tion’s ‘Diagnostic and Statistical Manual of Mental Disorders’ . . . .’’
9
General Statutes § 17a-458 (b) defines ‘‘[p]ersons with substance use
disorders’’ as ‘‘alcohol dependent persons, as that term is defined in subdivi-
sion (1) of section 17a-680, or drug dependent persons, as that term is
defined in subdivision (7) of section 17a-680 . . . .’’
10
We note that the court relied on General Statutes § 17a-458 (a) for the
definition of ‘‘persons with psychiatric disability.’’ The court nonetheless
applied the correct standard in concluding that the acquittee suffered from
mental illnesses as defined by the DSM-V and, consequently, from psychiatric
disabilities under the board statutes.