State v. Damone , 148 Conn. App. 137 ( 2014 )

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STATE OF CONNECTICUT v. REGINALD DAMONE
(AC 34248)
Robinson, Sheldon and Harper, Js.*
Argued October 10, 2013—officially released February 11, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Handy, J.)
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (acquittee).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Peter A. McShane, state’s
attorney, and Russell C. Zentner, senior assistant state’s
attorney, for the appellee (state).
Opinion
SHELDON, J. The acquittee, Reginald Damone, who
has been committed to the jurisdiction of the Psychiat-
ric Security Review Board (board) since July 1, 1985,
following his acquittal by reason of mental disease or
defect on two counts of sexual assault in the first degree
with a deadly weapon, two counts of kidnapping in the
first degree and one count of attempt to commit sexual
assault in the first degree, appeals from the order of
the trial court granting the state’s petition, pursuant to
General Statutes § 17a-593 (c), to continue his commit-
ment for a period of up to two years beyond the expira-
tion of his original maximum term on the ground that
he remains a person with psychiatric disabilities whose
discharge would constitute a danger to himself or oth-
ers. The acquittee claims that the court erred in granting
the petition because the state did not prove by clear and
convincing evidence, under controlling legal standards,
that he had a current mental illness that caused him to
pose a risk of imminent physical injury to himself or
others. We disagree with the acquittee’s claim, and,
thus, affirm the court’s order extending his commitment
by a period of two years.
On October 11, 1984, following a jury trial on charges
of two counts of sexual assault in the first degree with
a deadly weapon under General Statutes (Rev. to 1983)
§ 53a-70a and two counts of kidnapping in the first
degree under General Statutes § 53a-92 (a) (2) involving
attacks on two different women, and one count of
attempt to commit sexual assault in the first degree
under General Statutes §§ 53a-49 and 53a-70 involving
a third woman,1 the acquittee was acquitted of all
charges by reason of mental disease or defect under
General Statutes § 53a-13. As a result of this verdict,
the acquittee was committed to the custody of the Com-
missioner of Mental Health on February 7, 1985, for a
maximum term of twenty-five years. Thereafter, on July
1, 1985, he was committed to the jurisdiction of the
board for the balance of his twenty-five year term,
which was set to expire on February 6, 2010.
On August 26, 2009, the state timely filed a petition
for continued commitment, which it amended on
August 31, 2009. Pursuant to § 17a-593 (d), the board
responded to the petition by filing a report dated
November 24, 2009, in which it recommended that the
court grant the petition, and thereby order the continua-
tion of the acquittee’s commitment for a period of two
years beyond its original maximum term. On December
21, 2011, after conducting a two day hearing on the
petition, the court, Handy, J., delivered an oral decision
from the bench, granting the petition and ordering the
continuation of the acquittee’s commitment for an addi-
tional period not to exceed two years beyond its original
maximum term. This appeal followed.
I
UNDERLYING FACTS AND PROCEDURAL HISTORY
The following facts, as developed in the record before
the court, are relevant to our resolution of the
acquittee’s claims. A series of three violent incidents
in September, 1983, led to the acquittee’s arrest on
charges of two counts of sexual assault in the first
degree with a deadly weapon, two counts of kidnapping
in the first degree, and one count of attempt to commit
sexual assault in the first degree. The background of
mental illness against which the acquittee took part in
those violent incidents began long before September,
1983. When the acquittee was a child, his mother and
his father inflicted physical and psychological abuse
upon him. He witnessed his father physically abuse his
mother and also saw his mother raped by two men.
Between the ages of six and thirteen, the acquittee’s
uncle sexually molested him by fondling his genitals,
penetrating him anally, and forcing him to perform oral
sex. The acquittee’s baby-sitter ‘‘ ‘taught [him] how to
have intercourse’ ’’ when he was eleven years old. At
age twelve, the acquittee was gang raped by a group
of boys. He slept in the same bed as his mother until
he was fourteen and was friendless in high school.
As early as age five or six, the acquittee felt anger
toward women and fantasized about sexually assaulting
them. Later in childhood, he experienced command
hallucinations and reported thoughts of cats entering
his body and mind and taking control of him. As a
teenager, the acquittee dated passive, vulnerable
women, whom he threatened and assaulted. At age nine-
teen, during the six months that he was in the United
States Army, he committed his first rape and numerous
sexual assaults for which he was never arrested. The
acquittee also physically and sexually assaulted his
wife, both before and during their marriage. His assaults
on his wife involved bondage, beatings, threats, intimi-
dation, degradation, and sexual attacks.
In 1981, the acquittee intentionally drove his car into
a telephone pole in a suicide attempt. The acquittee
and his wife separated in 1982 because she feared for
her life. She fled from their home in South Carolina to
her brother’s home in Connecticut for safety. In Febru-
ary, 1982, the acquittee was hospitalized for eleven days
due to complaints of severe depression, marital issues,
and fears that he might injure his wife.
In 1983, the acquittee moved to Connecticut in an
attempt to reconcile with his wife. At that time, the
acquittee received outpatient treatment for symptoms
of depression, delusions, and labile mood. By the spring
of 1983, the acquittee’s longtime use of intoxicants,
which had begun with alcohol and marijuana at age
fifteen, progressed to psilocybin mushrooms, a halluci-
nogen, which he ingested on three occasions in 1983.
He also became obsessed with the idea of raping women
and experienced command hallucinations to do so from
cats and snakes, which he believed to live inside him.
His delusions caused him to believe, at the time of the
incidents which led to his arrest, that if he raped six
men and six women, he would inject the snakes into
them and be rid of them.
After his arrest, while incarcerated at the Hartford
Community Correctional Center, the acquittee dis-
played psychotic behavior, eating his own feces and
believing that a baby Smurf and a snake were living in
his stomach and feeding on him. He also started to
believe that he was becoming a snake, and so he shaved
his face, eyebrows, and eyelashes in an effort to resem-
ble a snake more closely. On February 23, 1984, having
given notice of his intent to rely upon the defense of
mental disease or defect, the acquittee was transferred
to the Whiting Forensic Institute at Connecticut Valley
Hospital (CVH) for examination and treatment while
awaiting the start of trial.
After his posttrial commitment to the custody of the
board on July 1, 1985, the acquittee was carefully super-
vised and monitored for a period of twenty-four years.
Initially, the acquittee was supervised at a maximum
security psychiatric hospital, but, later, was transferred
to less restrictive psychiatric facilities. He was granted
several temporary leaves to receive sex offender treat-
ment, drug abuse counseling and other services. Even-
tually, the acquittee was monitored in the community
on conditional release. The general trend throughout
the term of the acquittee’s commitment was one of
steady, closely monitored progress, during which it was
generally agreed by the acquittee’s treatment providers
that his mental disease was in remission and that he was
achieving success in understanding his illness, dealing
with people and handling the pressures of his increasing
freedom and new responsibilities. Ultimately, however,
there came a time, near the end of the initial term of
his commitment, when the acquittee violated several
requirements of his conditional release and was rehos-
pitalized. Although he resumed making progress follow-
ing his rehospitalization, including no longer being
required to take psychiatric medication, certain of his
treatment providers believed that he was not yet ready
to be discharged from the board’s jurisdiction because,
in their judgment, he still suffered from a mental disease
from which he would be at imminent risk of harm to
himself or others if he were released from their care,
custody, and supervision. As a result of this determina-
tion, which was shared with the state’s attorney, the
state’s attorney petitioned the court for an extension
of the acquittee’s maximum term of commitment to
the board.
A
The Acquittee’s History Under the Board’s Supervision
The evidence before the court, as reflected in its
decision on the petition, documented the following rele-
vant aspects of the acquittee’s treatment, supervision,
and conduct while committed to the jurisdiction of
the board.
In its first postcommitment memorandum of deci-
sion, dated September 13, 1993, following a hearing to
consider the acquittee’s possible transfer from a maxi-
mum security psychiatric hospital to a less restrictive
psychiatric hospital setting, the board found that, at
that time, the acquittee ‘‘suffers from a mental illness,
Major Depression, with Psychotic Features; Organic
Deficit, and a history of drug abuse.’’ The board con-
cluded that the acquittee ‘‘continues to require psychiat-
ric treatment to address the issues that render him a
danger to others and for his own personal growth and
development,’’ and ‘‘recommend[s] that he should be
in individual psychotherapy on a long term basis with
skilled clinicians.’’ The board noted that the acquittee
‘‘has made significant progress in his treatment at Whit-
ing Forensic Institute in addressing various issues and
gaining insight into both his mental illness and his
behavior,’’ and ‘‘has reached a level of clinical stability
based on his response to medication, therapeutic inter-
vention and his display of appropriate behavior.’’ The
board’s ultimate finding was that the acquittee ‘‘remains
a person who should be confined, that he is mentally
ill to the extent that his discharge or conditional release
would constitute a danger to himself or others . . .
[but that he] can be safely treated and supervised in
a psychiatric hospital providing less than maximum
security.’’ Accordingly, it ordered that he be transferred
to Norwich Hospital for the purposes of care, custody,
and treatment.
On September 13, 1999, following a hearing to con-
sider an application by CVH for the acquittee to be given
temporary leave to receive sex offender treatment, the
board found that the acquittee ‘‘remains mentally ill
and continues to require inpatient treatment and super-
vision. . . . [The acquittee] has benefited from sex
offender treatment, continues to need that treatment
and could have a very limited temporary leave to partici-
pate in that treatment without one-to-one supervision
and not pose a risk to the community. . . . [The
acquittee] is a person who should be confined . . .
[and] he has a psychiatric disability to the extent that
his discharge or conditional release would constitute
a danger to himself or others.’’ The board granted CVH’s
application for temporary leave, permitting the
acquittee to be transported to The Connection, Inc., by
CVH staff for sex offender treatment for up to two and
one-half hours, once per week.
On January 5, 2001, the board granted CVH’s applica-
tion for temporary leave to permit the acquittee to
attend mental health and substance abuse treatment
activities at Reliance House in Norwich for up to eight
hours per day, up to three days per week, while under
the general supervision of CVH staff. In its memoran-
dum of decision, the board found that the acquittee ‘‘is
clinically stable, cooperative with treatment and
responsibly uses his current temporary leave privileges.
. . . [T]he application would further his treatment
while not posing a danger to the community.’’
On July 16, 2004, the board conducted a hearing to
consider CVH’s application for a two phase temporary
leave plan. Phase one included increasing the
acquittee’s ongoing day treatment activities from three
to five days per week and beginning overnight stays at
a community residency program for up to three nights
per week. Phase two included increasing his overnight
stays to up to seven nights per week and causing him to
begin a search for competitive employment. The board
found that the acquittee ‘‘remains mentally ill and con-
tinues to require care, custody and treatment for that
mental illness, and without such he would constitute a
danger to himself or others. [The acquittee] has
remained clinically stable and compliant with all
aspects of his treatment in the hospital and in the com-
munity while on temporary leave. [The acquittee] has
progressed in his treatment such that he has gained
significant insight into his mental illness and his need
for treatment and supervision, and he has developed
relapse prevention plans to minimize the risk he would
pose in the community.’’ The board concluded that the
acquittee ‘‘is a person who should remain confined;
he has a psychiatric disability to the extent that his
discharge or conditional release would constitute a dan-
ger to himself or others.’’ The board granted CVH’s two
phase application for temporary relief and, on Novem-
ber 22, 2004, approved his movement to phase two of
his temporary leave.
On November 15, 2005, following a hearing on CVH’s
application for full conditional release, the board found
that the acquittee ‘‘continues to have a psychiatric dis-
ability that requires treatment, monitoring and supervi-
sion but he can be adequately and safely managed in
the community on conditional release. [The acquittee]
has remained clinically stable and compliant with all
treatment in the hospital and in the community while
on Temporary Leave. He has been able to maintain
appropriate relationships and continues to work in sex-
ual offender therapy to develop skills to form healthy
relationships and adhere to a relapse prevention plan.
[The acquittee] can be conditionally released to the
community without constituting a danger to himself or
others under the conditions contained within this
order.’’2
On March 13, 2007, following a hearing to consider
an application for modification of conditional release
filed by the Southeastern Mental Health Authority
(SMHA), the board granted the application and found
the following: ‘‘[The acquittee] has a psychiatric disabil-
ity that requires treatment, supervision and monitoring
which can be adequately provided in the community
on Conditional Release. [The acquittee] has made a
good adjustment to community living, has complied
with all treatment recommendations and conditions of
his release. He did have some difficulty in his residential
setting in regards to communication issues, but was
able to process this with his treatment providers and
resolve any issues. He has been able to retain and main-
tain employment. He began a relationship with a former
coworker, disclosed his legal status and crime to her
and has followed recommendations from his treaters
regarding the relationship.’’ The board restricted the
acquittee’s contact with the former coworker with
whom he had begun a relationship by ensuring that
SMHA supervise his physical and telephone contact
with her and by prohibiting all contact with her
minor children.
On August 14, 2007, following a hearing on an applica-
tion for modification of conditional release filed by the
SMHA seeking to move the acquittee to an independent
apartment setting, to have him self-administer medica-
tion, and to decrease the frequency of his vocational
counseling, the board granted the application upon find-
ing as follows: ‘‘[The acquittee] has remained clinically
stable and compliant with his treatment. He has utilized
his supports appropriately. He has demonstrated the
ability to function independently and has been a con-
structive and helpful member of his residential commu-
nity. He has shown that he has the skill level to function
safely in an independent apartment with residential sup-
port from the Reliance House Transitional Apartment
Program. He has demonstrated compliance with medi-
cation and understands his need for medication. He has
been able to secure and maintain employment with
minimal need for vocational services.’’ The board also
included in its memorandum of decision the fact that
following its March 13, 2007 order, The Connection,
Inc., developed a plan to allow the acquittee to have
increased contact with his former coworker and permit
him to have contact with her daughters in public places.
The acquittee, however, ended his relationship with the
coworker by the time of the August 14, 2007 memoran-
dum of decision.
On February 4, 2008, the board considered and
granted an application for the acquittee, who was
employed by McDonald’s, to attend a managers meeting
at the Mohegan Sun Conference Center, located on
casino grounds, finding that the acquittee ‘‘has
remained compliant with community treatment. He
would not constitute a danger to himself or others if
allowed to travel on casino grounds for a job related
purpose with his probation officer.’’
On May 21, 2008, following a hearing to consider an
application for modification of conditional release to
decrease the acquittee’s individual therapy sessions
from weekly to twice per month, to reduce his supervi-
sion by the Office of Adult Probation from three times
per month to two times per month, and to increase the
weekly number of hours the acquittee could work to
fifty hours per week, the board granted the application
upon finding as follows: ‘‘[The acquittee] has remained
clinically stable and compliant with all aspects of his
Conditional Release Order. He continues to demon-
strate progress relative to his treatment and recovery.
He has maintained an independent apartment and
employment. Further, he continues to evidence insight
into his psychiatric illness, need for treatment and
understanding of his psychiatric medication. Allowing
changes to his current community placement order
would not increase his risk to himself or the com-
munity.’’
The acquittee’s long history of progress in coping with
his mental illness while under the board’s supervision
suffered a series of setbacks beginning in 2008, which
ultimately led to his rehospitalization. The acquittee’s
problems began on October 16, 2008, when his proba-
tion officer, Daniel Marsh, called his home telephone
and cell phone after his 11 p.m. curfew but received
no answer. The acquittee attempted to call Marsh back
and left him voice mail messages. At midnight, Marsh
called the acquittee’s home telephone and he answered.
The next day, the acquittee explained to psychologist
Mark A. Gould, his conditional release supervisor, that
he was awakened by Marsh’s telephone call, went out-
side to smoke a cigarette, and then returned Marsh’s
call from his cell phone.
On October 28, 2008, Marsh conducted a home visit
at the acquittee’s apartment at about 10:15 p.m., before
the acquittee’s curfew of 11 p.m., and found that the
acquittee was not at home. Marsh left his business card
on the acquittee’s door, instructing him to call when
he returned home. When the acquittee returned home,
he claimed not to have seen Marsh’s card, which he
speculated had fallen off the door. When Gould con-
fronted the acquittee about these missed curfews, the
acquittee became argumentative, accusatory, and
angry.
Two months later, in January, 2009, the acquittee
breached the restrictions on accessing the Internet set
forth in the conditions of release appended to and made
a part of the board’s November 15, 2005 decision author-
izing his conditional release. In particular, he violated
the requirement that he obtain prior approval for and
notify his treatment providers of his relationships with
women. A polygraph examination administered to the
acquittee revealed that he had viewed Internet pornog-
raphy, had spoken to former prostitutes, and had had
sexually explicit telephone calls with women. He also
had created basic Facebook3 and Gmail4 accounts that
did not include photographs or personal information
about himself. In this same time frame, moreover, the
acquittee admittedly met a prostitute at a soup kitchen
and gave her money to purchase cigarettes. He reported
that he had been interested in pursuing a sexual rela-
tionship with her, but not as a prostitute. With regard
to the sexually explicit telephone calls, the acquittee
explained that he had met two women on the bus with
whom he later had several telephone conversations,
but denied ever having phone sex. He ended his contact
with one of the two women after he discovered that
she had a boyfriend. He ended his contact with the
second woman because he suspected that she was a
drug addict and concluded that involving himself with
her would not be a ‘‘ ‘good situation’ . . . .’’
In light of the acquittee’s recent backsliding, the
board determined, at a hearing held on March 17, 2009,
that his conditions of release should be modified to
restrict his Internet access and forbid him from commu-
nicating with former prostitutes. Also on that date, the
board rejected a proposal that the frequency of the
acquittee’s visits with his psychiatrist be reduced, con-
cluding that the acquittee ‘‘has a psychiatric disability
that requires treatment, supervision and monitoring
that can be adequately provided in the community under
the terms of Conditional Release. Although [the
acquittee] has made progress in the community by living
independently, [self-administering] medications and
obtaining and maintaining competitive employment,
[the acquittee] recently failed to disclose activities that
potentially could impact his risk, requiring interven-
tions including therapeutic contacts. Given these recent
events, decreasing interactions with his psychiatrist is
not supported. Under the conditions of this order, how-
ever, [the acquittee] would not constitute a danger to
himself or others while on Conditional Release. . . .
[The acquittee] has a psychiatric disability to the extent
that his final discharge would constitute a danger to
himself or others, but can be adequately treated and
supervised in the community.’’
Over the next several months, the acquittee was
granted and successfully completed a series of minor
modifications of his conditional release to allow him
limited access to the Internet and e-mail for employ-
ment purposes,5 and to enable him to travel out of state
to visit his dying mother, then to attend her funeral.6
In light of his success in handling these new responsibil-
ities, a further modification of his conditions of release
was approved by the board on October 15, 2009, to
decrease the level of supervision and monitoring by his
conditional release supervisor. The board based this
modification on findings that the acquittee ‘‘has
remained clinically stable and in compliance with all
conditions. He is currently working full time and manag-
ing all community responsibilities appropriately. The
[b]oard finds that the requested modifications to [the
acquittee]’s Conditional Release would not increase his
risk to himself or to the community.’’
Contemporaneous with this progress, however, the
acquittee experienced other problems while on condi-
tional release. To begin with, in October and November,
2009, the acquittee missed five days from work without
notifying his conditional release supervisor, as required
by the conditions of his release. When asked about
these absences, the acquittee claimed that he did not
know that he needed to provide notice of absences
from work to his conditional release supervisor. In
December, 2009, the acquittee’s urine sample tested
positive for codeine, a prescription drug for which the
acquittee did not possess a prescription, following a
random toxicology screening. Initially, the acquittee
was defensive about the test results, claiming that they
must have resulted from tampering with the urine sam-
ple or another mistake of some kind. Later, however,
he explained that his coworker at Bob’s Discount Furni-
ture had given him the pills to ease his shoulder pain
from moving furniture. As a result of this positive urine
test, on January 14, 2010, the board issued a modifica-
tion of conditional release, increasing the acquittee’s
home visits by probation to once per week, increasing
his urine screens by probation to once per week, and
adding a weekly substance abuse group at the Reliance
House to his treatment schedule.
On December 15, 2009, the board conducted a hearing
for modification of the acquittee’s conditional release,
following SMHA’s request that he be discharged from
sex offender treatment at The Connection, Inc. The
board denied the modification, finding the following
facts: ‘‘[The acquittee] has made good use of sex
offender treatment at The Connection. He has demon-
strated his ability to identify his risk factors, utilize
coping mechanisms to mitigate those risk factors and
develop a positive alliance with his treatment providers.
Further, he has demonstrated, over time, his ability to
maintain clinical stability such that he has minimized
the risk he poses to the satisfaction of his treatment
providers. However, [the acquittee] has a history of
domestic violence and exposure to inappropriate and
dysfunctional female relationships. He has yet to
accomplish his goal of pursuing a healthy adult roman-
tic relationship. This goal is hampered by his many
years of inpatient hospitalization and the challenge of
being listed on the Connecticut Sex Offender Registry.
[The acquittee] can be greatly assisted by remaining
involved with sex offender treatment experts who can
guide and support him through the process of disclosing
his status and history to women. Continuing his treat-
ment with The Connection will provide [the acquittee]
with the support necessary for the safe completion of
the next stage in his recovery.’’
Between November, 2009, and July, 2010, the
acquittee also experienced two instances of financial
difficulty. The electricity to his apartment was shut off
at a time when he should have had sufficient money to
pay his bill. The acquittee had been receiving $300 per
month in assistance to pay one half of his rent. Such
assistance was scheduled to end in April, 2010, but he
continued to receive it until June, 2010. The acquittee
did not inform his treatment providers of the additional
$600 he had mistakenly received as a result, but later
explained that he had sent the $600 to his family to help
them pay for funeral expenses following his brother’s
death in April, 2010.
In July, 2010, the acquittee’s treatment providers dis-
covered that he possessed an iPhone that was capable
of accessing the Internet. The acquittee had failed to
disclose his possession of this iPhone to his treatment
providers and did not have permission to possess an
Internet-capable device. He claimed to have borrowed
the iPhone from a coworker without knowledge that it
was capable of accessing the Internet.
Last, on July 8, 2010, the acquittee gave a urine sample
in a random toxicology screening that tested positive
for cocaine. When he was confronted about the positive
test result, the acquittee initially was defensive and
denied using cocaine. Later, however, he explained that
when he was talking to his neighbor about his grief
over the recent deaths of his mother and older brother,
and the terminal cancer diagnoses of both his sister
and his younger brother,7 the neighbor, who is a drug
dealer, offered him a line of cocaine to help him feel
better, and he accepted. Prior to his positive drug test
for cocaine, the acquittee had failed to notify his treat-
ment providers, in violation of his conditional release,
either that a drug dealer lived in his apartment complex
or that his brother had been diagnosed with cancer.
As a result of his two positive drug tests within an
eight month period, it was recommended that the
acquittee return to CVH, and he did so voluntarily. Once
he was readmitted to CVH, the acquittee reportedly felt
anxious, stating that ‘‘ ‘maybe I should’ve talked about
my problems earlier.’ ’’ Following his readmission, the
acquittee’s treatment providers reported that he was
behaving appropriately with both staff and his peers. He
began attending individual therapy with psychologist
Richard Loughead, who described the acquittee ‘‘as hav-
ing benefited from individual therapy, gaining insight
into his past experiences and relationships, and [having]
hope for the future.’’ The acquittee discussed with Loug-
head what had contributed to his return to CVH from
conditional release, including his cocaine use, his finan-
cial issues, and the death and terminal cancer diagnoses
of his family members.
The most recent reports by CVH to the board, dated
October 17, 2011, and November 9, 2011, described
the acquittee’s condition as ‘‘major depressive disorder,
recurrent, mild,’’ and ‘‘in remission.’’ At the time of
these reports, CVH reported that the acquittee no longer
required the aid of psychotropic medication, was ‘‘clini-
cally stable,’’ and ‘‘d[id] not present a substantial risk
of harm to himself or others.’’
B
Reports by the Board and Medical Experts
The acquittee’s maximum commitment date was set
to expire on February 6, 2010. By motion dated August
26, 2009, the state filed a petition for continued commit-
ment of the acquittee, which was amended on August
31, 2009. A hearing was held on this matter before the
court on October 12 and 13, 2011. Prior to the hearing,
the board, as well as the state’s and the acquittee’s
chosen psychiatrists, submitted reports for the
court’s consideration.
In its November 24, 2009 report, the board informed
the court of its findings as follows: ‘‘[The acquittee] is an
individual with a psychiatric illness and the diagnoses
of Major Depressive Episode, Recurrent, Severe, with
Mood Congruent Psychotic Features, In Full Remission;
Cannabis Abuse, In Sustained Full Remission; Halluci-
nogen Abuse, In Sustained Full Remission and Antiso-
cial Personality Traits, by history. During his many years
of hospitalization and outpatient treatment, [the
acquittee] has demonstrated progress in his understand-
ing and acceptance of his mental illness, need for treat-
ment and management of his risk factors for sexual
reoffending. He is currently clinically stable and has
maintained competitive employment and a positive rela-
tionship with his treatment providers. However, [the
acquittee] committed multiple violent sexual assaults
involving verbal threats and a weapon. While [the
acquittee] has been actively involved in sexual offender
treatment for many years, he has not yet developed and
maintained a stable romantic relationship utilizing the
skills taught during his many years of treatment. In the
context of desiring to form such a relationship, [the
acquittee] recently failed to disclose relevant informa-
tion to his treatment team. [The acquittee]’s history is
significant for childhood abuse and early sexual aggres-
sive thoughts toward women. The prospect of a roman-
tic relationship may place him in a position of
vulnerability and a reactivation of his risk factors as
evidenced by his noncompliance with treatment stipula-
tions to disclose personal relationship issues to his
treaters. [The acquittee]’s noncompliance is indicative
of his need for continued monitoring and support to
address this next aspect of his treatment. Therefore, the
[b]oard finds that [the acquittee] would pose a danger
without continued supervision under the jurisdiction
of the [b]oard.’’ The board concluded that the acquittee
‘‘remains an individual with psychiatric disabilities and
these disabilities are such that his discharge from the
jurisdiction of the [b]oard would constitute a danger
to himself or others.’’ Accordingly, the board recom-
mended that the court grant the state’s petition.
The state’s psychiatric expert, Donald R. Grayson,
made five observations, opinions, and recommenda-
tions regarding the acquittee in his report dated January
8, 2010. First, he concluded that ‘‘[a] formal mental
status examination revealed no current gross clinical
evidence suggestive of psychosis, organic brain impair-
ment, depression, mania, hypomania, anxiety or poorly
controlled anger.’’ Grayson reported that the acquittee
‘‘presented as a clean, appropriately attired, unguarded,
cooperative, polite, friendly, outgoing, likeable, alert
man . . . .’’ Second, Grayson noted that since the
acquittee’s full release into the community, ‘‘he has
been living in his own apartment, has been successfully
employed, has met his economic responsibilities, has
done well with his treatment team, has been responsible
for the taking of his own medications and has had no
problems with legal authorities.’’ Third, Grayson classi-
fied the acquittee’s diagnoses as follows: ‘‘Major
Depressive Disorder, recurrent, with psychotic fea-
tures, in remission; Cannabis Abuse—in remission; Hal-
lucinogen Abuse—in remission; Opioid Abuse
(codeine)—recently confirmed by lab testing; Phobia
of snakes—childhood onset—by history; Sexual Sadism
(see enclosed DSM IV Criteria)—by records; Antisocial
Personality Disorder.’’ Fourth, Grayson opined that ‘‘on
the basis of [the acquittee’s memorandum of decision]
violations over recent months . . . and the [board]
deeming it necessary in recent months to increase [the
acquittee]’s supervision and restrictions, it does not
seem prudent, in terms of [the acquittee]’s safety and
the safety of others, for [the acquittee] to be released
from the supervision of the [board] for at least the
next couple of years.’’ Last, based on the acquittee’s
extensive history, dating back to childhood, of trau-
matic experiences that led to the development of rage
directed at others, Grayson expressed that he has
‘‘major reservations about ever totally releasing [the
acquittee] from some type of court ordered supervi-
sion—no matter how minimal—by the [board].’’
Grayson subsequently submitted an eleven page sup-
plemental report dated September 30, 2011, in which
he stated that he has ‘‘no hesitation, at this point, in
endorsing a plan to have [the acquittee] live in a commu-
nity outside of a hospital setting.’’ Grayson was, ‘‘how-
ever, still reluctant to endorse [the acquittee]’s release
from the supervision of the [board].’’ Grayson’s conclu-
sion was based upon the seriousness of the sexual
assault offenses committed by the acquittee in 1983
that led to his commitment; his psychotic behavior at
the time of the 1983 offenses; his extremely traumatic
history during his childhood involving sexual assault
and physical and verbal abuse; his psychotic-like symp-
toms as a child that led Grayson to opine that ‘‘with
enough stress and/or substance abuse, he could have
another psychotic decompensation and act aggressively
towards others’’; his ‘‘lifelong behavioral pattern’’ of
aggression toward women, dating back to childhood;
his history of sexual sadism; his failed attempt to estab-
lish a romantic relationship with a woman; his history
of abusing marijuana and psilocybin mushrooms; and
the fact that in 2009, when he was seemingly within
months of his release from the board, he tested positive
for codeine and cocaine on different occasions, and
ultimately returned from living independently in the
community to the care of CVH. Grayson stated that he
believed that ‘‘there is a better than minimal chance
that he again could be a danger to the community. . . .
[T]here is a chance that he will return to substance
abuse, a chance that he will decompensate again emo-
tionally and a chance that he will return to sexually
aggressive behavior.’’
The acquittee’s psychiatric expert, Peter M. Zeman,
in his March 30, 2010 report, concluded that the
acquittee ‘‘no longer requires the oversight and supervi-
sion of the [board]. He is safe and appropriate for dis-
charge from the [b]oard at this time.’’ Zeman diagnosed
the acquittee with ‘‘Major Depressive Disorder, recur-
rent, severe, with psychotic features, in full remission;
Cannabis Abuse, in sustained full remission; and Hallu-
cinogen Abuse, in sustained full remission.’’ Zeman
opined, ‘‘with reasonable psychiatric certainty, that [the
acquittee] shows no evidence of an active psychiatric
illness. He has responded well to his treatment program
and is committed to remaining in treatment and on his
current regimen of psychiatric medications whether or
not he is under the supervision of the [board]. He is
functioning well in the community, and . . . presents
no danger to himself or others. Specifically, he does
not present a risk of aggressive sexual behavior
towards women.’’
Zeman submitted a supplemental report dated July
26, 2011, in which he echoed his March 30, 2010 opinion
‘‘with reasonable psychiatric certainty, that [the
acquittee] shows no evidence of an active psychiatric
illness. He has responded well to treatment. His rehospi-
talization was precipitated by a one-time use of cocaine
which is unlikely to recur. He functioned well in the
community up to the time of his latest hospitalization,
and . . . he presents no danger to himself or others.
Specifically, he does not present a risk of aggressive
sexual behavior towards women.’’ Zeman ultimately
concluded that, in his opinion, the acquittee ‘‘no longer
requires the oversight and supervision of the [board]. He
is safe and appropriate for discharge from the [b]oard at
this time.’’
In total, the evidence before the court included the
testimony of five witnesses, twenty-nine state’s exhib-
its, and seventy-four acquittee’s exhibits. Following the
hearing, the parties stipulated to the admission of three
additional exhibits: The acquittee’s most recent six
month review report dated October 11, 2011; an adden-
dum to that report; and Zeman’s response to the last
report and addendum.8 More than two months after the
hearing, on December 21, 2011, the court announced its
oral decision granting the state’s petition for continued
commitment of the acquittee to the jurisdiction of the
board for a period not to exceed two years from the
date of the decision.
C
The Court’s Findings and Conclusions
In granting the state’s petition, the court made the
following factual findings: ‘‘One. The [acquittee] has
made substantial progress in understanding and manag-
ing his mental illness since his initial commitment to
the [board] in 1985. Two. Since that commitment, [the
acquittee] transitioned from a maximum security facil-
ity to a less restrictive environment to overnight passes
to the community to a full conditional release to the
community. Three. [The acquittee] lived and worked
full-time in the Norwich community for approximately
six years until July, 2010, during which time up until
the last six months of his conditional release he was
compliant with treatment, and his mental illness and
substance abuse issues appeared to be in full remission.
Four. Several months prior to July of 2010, [the
acquittee]’s mental status deteriorated. He tested posi-
tive on one occasion for codeine and on another occa-
sion for cocaine. He was not forthcoming but was
instead defensive about this discovered abuse. Five.
At about the same time and while he was still in the
community, [the acquittee] had not disclosed issues he
was having with his finances, social contacts, and sex-
ual activities. Six. Due to those issues, [the acquittee]
was rehospitalized in July of 2010. Since that time, he
has been actively engaged in treatment and compliant.
In this controlled setting, [the acquittee]’s mental illness
is in remission, and his substance abuse is as well.
An updated risk assessment for sexual reoffending is
forthcoming. Seven. The treatment team is working on
a development plan for [the acquittee]’s engagement in
the Hartford community, a new and untested environ-
ment for [the acquittee]. Eight. The expert testimony
is in conflict as to whether [the acquittee] remains a
danger to himself or others or to the property of others.
Nine. This court’s main concern is [the acquittee]’s
recent rehospitalization and the attendant discovery of
issues which he did not previously disclose to his treat-
ers while on conditional release in the Norwich com-
munity.’’
On the basis of the foregoing findings, the court made
the following conclusion: ‘‘[T]he [acquittee] is clinically
stable in his currently controlled—controlled is empha-
sized and underlined—environment but that the state
has proven by clear and convincing evidence, if
removed from that controlled environment, [the
acquittee] is at great risk to mentally relapse.
‘‘Without his current inpatient treatment and supervi-
sion, [the acquittee] will continue to suffer from psychi-
atric disabilities in that he has continued difficulty in
disclosing relevant information to his treaters about his
personal issues, including finances, social contacts, and
sexual activities.
‘‘Thus, the state has proven by clear and convincing
evidence that [the acquittee] at this time continues to
present a risk to the safety of himself or others or
present a danger to himself or others or to the property
of others.
‘‘Accordingly, the state’s motion to extend the
acquittee’s commitment is granted. And this court
orders the acquittee . . . to be committed to the
[board] for an additional period of time not to exceed
two years from the date of this decision.
‘‘This court strongly recommends to the [b]oard [that]
a transitional plan be in place for [the acquittee] to
engage fully in a conditional release in the Hartford
community in the next twelve months, to then be moni-
tored for compliance in the community for the second
twelve month period of this commitment with the goal
of discharge from the [board] at the end of this two
year commitment provided the acquittee has been
fully compliant.’’
II
STANDARD OF REVIEW
With those facts and history in mind, we now turn
to the claim raised by the acquittee on appeal. The
acquittee argues that the court erred in granting the
state’s petition for his continued commitment. At issue
is whether the court applied the proper standard when
granting the state’s petition, that because of a current
mental illness, the acquittee would pose a risk of immi-
nent injury to himself or others if discharged from the
board’s jurisdiction. We disagree with the acquittee and
conclude that the court applied the proper standard.
The continued commitment of an acquittee is gov-
erned by § 17a-593 (c), which provides: ‘‘If reasonable
cause exists to believe that the acquittee remains a
person with psychiatric disabilities or a person with
intellectual disability to the extent that his discharge
at the expiration of his maximum term of commitment
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.’’9 ‘‘In
[a] continued commitment proceeding, the state b[ears]
the burden of proving by clear and convincing evidence
that the acquittee is currently mentally ill and dangerous
to himself or herself or others or gravely disabled.’’10
(Internal quotation marks omitted.) State v. Maskiell,
100 Conn. App. 507, 521, 918 A.2d 293, cert. denied, 282
Conn. 922, 925 A.2d 1104 (2007).
‘‘[T]he confinement of insanity acquittees, although
resulting initially from an adjudication in the criminal
justice system, is not punishment for a crime. The pur-
pose of commitment following an insanity acquittal,
like that of civil commitment, is to treat the individual’s
mental illness and protect him and society from his
potential dangerousness. The committed acquittee is
entitled to release when he has recovered his sanity or
is no longer dangerous. . . . As he was not convicted,
he may not be punished. His confinement rests on his
continuing illness and dangerousness.’’ (Internal quota-
tion marks omitted.) Payne v. Fairfield Hills Hospital,
215 Conn. 675, 683–84, 578 A.2d 1025 (1990).
‘‘The determination as to whether an acquittee is
currently mentally ill to the extent that he would pose
a danger to himself or the community if discharged is
a question of fact and, therefore, our review of this
finding is governed by the clearly erroneous standard.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed
. . . .’’ (Internal quotation marks omitted.) State v.
Maskiell, supra, 100 Conn. App. 521–22. ‘‘Conclusions
are not erroneous unless they violate law, logic or rea-
son or are inconsistent with the subordinate facts. The
court’s conclusions are to be tested by the findings and
not the evidence. . . . Conclusions logically supported
by the finding must stand.’’ (Citations omitted.) State
v. Warren, 169 Conn. 207, 213–14, 363 A.2d 91 (1975).
We address separately in the following sections the
court’s determination that the acquittee suffered from
a current mental illness and that, if released from the
jurisdiction of the board, such mental illness would
cause him to present a risk of imminent physical injury
to himself or others.
A
The Court’s Mental Illness Determination
With regard to the court’s mental illness determina-
tion, the acquittee argues that the court erred in granting
the state’s petition because the state did not prove, by
clear and convincing evidence, that he suffers from a
current mental illness. He also asserts that the court
did not apply the appropriate standard when evaluating
the evidence to make its mental illness determination.
The acquittee claims that the state did not meet its
burden of proving that his mental illness of ‘‘major
depressive disorder, recurrent, severe, with psychotic
features, in full remission,’’11 may become active with
reasonable medical probability, a standard he discerns
from General Statutes § 17a-580 (7), which defines men-
tal illness as: ‘‘[A]ny mental illness in a state of remission
when the illness may, with reasonable medical probabil-
ity, become active . . . .’’ See also Regs., Conn. State
Agencies § 17a-581-2 (a) (5).12 The acquittee claims that
the court did not set forth or apply this definition when
making its finding that he ‘‘is at great risk to mentally
relapse.’’ The acquittee argues that the phrases ‘‘at great
risk to mentally relapse’’ and ‘‘may, with reasonable
medical probability, become active,’’ are not equivalent
standards by which the court can conclude that he
currently suffers from a mental illness. We disagree
with the acquittee that there is a discernible difference
between the two phrases.
The court’s conclusion that the acquittee is ‘‘at great
risk to mentally relapse’’ does not violate law, logic or
reason, nor is it inconsistent with the subordinate facts.
State v. Warren, supra, 169 Conn. 213–14. Further, the
court’s conclusions are logically supported by its find-
ings that the acquittee is a person with psychiatric disa-
bilities, as defined by the applicable statute and
regulation. This is so despite the fact that neither Gray-
son nor the court phrased their conclusions using the
exact terminology of the statute and regulation. By anal-
ogy, our Supreme Court, in medical malpractice cases,
has ‘‘reject[ed] the proposition that certain formulaic
words are essential when an expert renders an opinion.’’
Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888(1987) (rejecting claim that ‘‘an expert in his testimony
or in a report must employ the ‘magic words’ that his
opinion was ‘reasonably probable’ ’’). In addition, this
court has stated that ‘‘we do not believe that it is manda-
tory to use talismanic words or the particular combina-
tion of magical words represented by the phrase
reasonable degree of medical certainty [or probability]
. . . .’’ (Internal quotation marks omitted.) Macchietto
v. Keggi, 103 Conn. App. 769, 776, 930 A.2d 817, cert.
denied, 284 Conn. 934, 935 A.2d 151 (2007).
The testimony of and the reports submitted by Gray-
son, the state’s sole witness, although not employing
the ‘‘magic words’’ that the acquittee’s mental illness
‘‘may, with reasonable medical probability, become
active,’’ still do support the conclusion of the court
that the acquittee is ‘‘at great risk to mentally relapse.’’
Although the court is not required to rely upon the
testimony of medical experts,13 it summarized the con-
clusions of both medical experts as well as the testi-
mony of the other three witnesses before issuing its
findings and conclusions. The court also noted specifi-
cally that ‘‘Dr. Grayson concluded with a reasonable
degree of medical certainty that [the acquittee]
remained someone who suffered from a psychiatric
disability and remained a danger to himself and/or oth-
ers and should not be discharged from the [board]
. . . .’’ The court also noted that Zeman ‘‘concluded in
his expert opinion and with a reasonable degree of
medical certainty that [the acquittee] no longer suffered
from a psychiatric disability and no longer posed a
threat to himself and/or others or property and would
not be a danger if discharged from the [board] . . . .’’
The court reviewed and weighed the entire substance
of the experts’ testimony and reports when making
its findings that the acquittee suffers from a current
mental illness.14
Specifically, the court found that the acquittee ‘‘has
made substantial progress in understanding and manag-
ing his mental illness since his initial commitment to
the [board] in 1985,’’ and ‘‘up until the last six months
of his conditional release he was compliant with treat-
ment, and his mental illness and substance abuse issues
appeared to be in full remission.’’ The court then went
on to find that ‘‘[s]everal months prior to July of 2010,
[the acquittee]’s mental status deteriorated’’ and that
since his rehospitalization, ‘‘he has been actively
engaged in treatment and compliant.’’ The court found
that ‘‘[i]n this controlled setting, [the acquittee]’s mental
illness is in remission, and his substance abuse is as
well,’’ but ultimately concluded that ‘‘the state has
proven by clear and convincing evidence [that] if
removed from that controlled environment, [the
acquittee] is at great risk to mentally relapse.’’ The court
also concluded, on the basis of its findings, that ‘‘[w]ith-
out his current inpatient treatment and supervision,
[the acquittee] will continue to suffer from psychiatric
disabilities . . . .’’
When making its mental illness determination, the
court set forth the proper standard of review and exam-
ined the record before it, including the testimony and
reports submitted by Grayson and Zeman, to support
its findings and conclusion that, if discharged from the
board’s jurisdiction, the acquittee would be ‘‘at great
risk to mentally relapse.’’ There is no legally significant
difference between the court’s finding that the acquittee
would be ‘‘at great risk to mentally relapse’’ if he were
discharged and the finding he claims the board should
have made before extending his commitment, to wit:
that, if discharged, ‘‘[his mental illness] may, with rea-
sonable medical probability, become active.’’ A finding
of great risk that, in given circumstances, a patient
with an undesirable mental condition in remission will
mentally relapse, when based upon the opinion of an
experienced psychiatrist, is surely no less predictive
that the condition will recur than a finding to a reason-
able medical probability that the condition may once
again become active. The court thus clearly made find-
ings regarding the acquittee’s condition that met the
definition of mental illness under the statute and regula-
tion. Under those circumstances, the fact that the court
did not use the specific words ‘‘may, with reasonable
medical probability, become active,’’ does not warrant
reversal under the clearly erroneous standard of review.
See State v. Robinson, 227 Conn. 711, 731, 631 A.2d 288(1993) (failure by trial court to use ‘‘talismanic’’ words
does not indicate failure to make necessary determina-
tion). Thus, the acquittee’s first claim fails.
B
The Court’s Dangerousness Determination
The acquittee next claims that the court’s ruling on his
dangerousness is not supported by clear and convincing
evidence, or alternatively, that it improperly rests upon
speculative conditions precedent, that due to a current
mental illness, he poses a risk of imminent physical
injury to himself or others if released from the jurisdic-
tion of the board. Specifically, he claims that the state
was required, but failed, to establish by clear and con-
vincing evidence that he posed a risk of imminent
physical injury to himself or others, meaning a risk that
physical injury is ‘‘ready to take place’’ or ‘‘hanging
threateningly’’ over him.15
‘‘The purpose of commitment following an insanity
acquittal, like that of civil commitment, is to treat the
individual’s mental illness and protect him and society
from his potential dangerousness. The committed
acquittee is entitled to release when he has recovered
his sanity or is no longer dangerous. . . . As he was
not convicted, he may not be punished. His confinement
rests on his continuing illness and dangerousness.’’
(Internal quotation marks omitted.) Payne v. Fairfield
Hills Hospital, supra, 215 Conn. 683–84.
‘‘[T]he determination of dangerousness in the context
of a mental status hearing reflects a societal rather than
a medical judgment, in which the rights and needs of
the defendant must be balanced against the security
interests of society.’’16 State v. Putnoki, 200 Conn. 208,
221, 510 A.2d 1329 (1986). The court correctly noted
that its ‘‘inquiry should focus on whether the person is
a danger to himself or others, whether he presents . . .
the risk of imminent physical injury to others or self,’’
quoting State v. March, 265 Conn. 697, 709, 830 A.2d
212 (2003), and citing State v. Harris, supra, 277 Conn.
378. ‘‘[T]he ultimate determination of mental illness and
dangerousness is a legal decision’’; State v. Putnoki,
supra, 219; in which ‘‘the court may and should consider
the entire record available to it, including the defen-
dant’s history of mental illness, his present and past
diagnoses, his past violent behavior, the nature of the
offense for which he was prosecuted, the need for con-
tinued medication and therapy, and the prospects for
supervision if released.’’ Id., 221.
The court here set forth the proper standard for
determining dangerousness and conducted its review
in accordance with that standard. In its discussion, the
court detailed the testimony and reports submitted by
Grayson and Zeman as well as other testimony and
exhibits admitted at the hearing. As for Grayson, the
court noted that, as of January, 2010, he had ‘‘reserva-
tions about ever totally releasing the acquittee from the
jurisdiction of the [board] but . . . that [the acquittee]
could at some point go back into the community with
proper supervision and treatment.’’ The court further
noted that, as of January, 2011, the date of Grayson’s
addendum, his conclusion remained unchanged, for
‘‘[h]e felt that [the acquittee] had made good gains but
he was not ready yet and should remain under the
[board]’s jurisdiction.’’ Ultimately, ‘‘Grayson concluded
with a reasonable degree of medical certainty that [the
acquittee] . . . remained a danger to himself and/or
others and should not be discharged from the [board]
. . . .’’ Grayson expressed that ‘‘there is a better than
minimal chance that he again could be a danger to the
community. . . . [T]here is a chance that he will return
to substance abuse, a chance that he will decompensate
again emotionally and a chance that he will return to
sexually aggressive behavior.’’
The court also credited the testimony of the
acquittee’s supervisor, Stephen Moore, who, prior to
the acquittee’s decompensation, had ‘‘felt [that] the
acquittee showed insight into his past behavior, partici-
pated in group, and effectively handled feedback,’’ and,
thus, at one point, had recommended that he be dis-
charged from the board’s jurisdiction. Following the
acquittee’s decompensation in 2008 and 2009, however,
Moore became ‘‘concerned when he discovered that
the acquittee had not disclosed a personal relationship
and he had test[ed] positive for the use of cocaine.’’
Moore thus echoed the concern of Grayson ‘‘that if
[the acquittee] were to return to regular use of illicit
substances, such use could correlate to a higher risk
of recidivism.’’ Grayson and Moore both advised the
court that, in their opinion, without the continuing
supervision of the board, there remains a risk of the
acquittee returning to substance abuse, which, in turn,
could lead to sexually aggressive behavior, following
the same pattern of substance abuse and that led up
to the acts of violence in 1983, which resulted in the
charges of which he was acquitted by reason of mental
disease or defect.
As for Zeman, the court summarized his opinion as
follows: ‘‘[The acquittee’s] major depressive disorder
with psychotic features was in full remission and had
been for twenty-five years with an extremely low proba-
bility of a recurrence. . . . [The acquittee] had faced
a number of stressors while on conditional release and
handled them appropriately with the exception of his
onetime self-medication with cocaine after some family
deaths. Dr. Zeman concluded in his expert opinion and
with a reasonable degree of medical certainty that [the
acquittee] no longer suffered from a psychiatric disabil-
ity and no longer posed a threat to himself and/or others
or property and would not be a danger if discharged
from the [board] . . . .’’
The court also summarized its review of the other
witnesses’ testimony and exhibits. As for Marsh, the
court recalled that although he once had believed that
the acquittee was substantially compliant under his
supervision, he conceded that the acquittee had logged
onto a social network, had not been honest with him
about the codeine and cocaine incidents, and had begun
to make new disclosures to his treatment providers of
previously withheld information. The court also consid-
ered the testimony of the acquittee, who stated that, if
discharged, he would continue with substance abuse
and sex offender treatment, reconnect with his social
worker, attempt to regain his employment with Bob’s
Discount Furniture, and utilize his friends in the Nor-
wich community for support.
The court also considered CVH’s six month report
following the acquittee’s rehospitalization, dated Octo-
ber 11, 2011, which noted that, although the acquittee
was adjusting well to his rehospitalization, had been
compliant with his treatment program, was clinically
stable, and stable as to his drug abuse in his current,
controlled environment, there was no recommendation
for any change in his in-patient status at that time. The
court summarized its conclusions in an addendum to
that report dated November 9, 2011, in which it noted
that the acquittee’s ‘‘case is currently managed. [The
acquittee] does not present a substantial risk to himself
or others . . . .’’ Last, the court summarized in its dis-
cussion that Zeman’s response to CVH’s sixth month
report and addendum was that the acquittee does not
currently have substance abuse issues and that there
is no recurrent pattern of abuse.
On the basis of these reports and testimony, and all
of the state’s and acquittee’s exhibits that were entered
into evidence at the hearing, the court found that, as
to the acquittee’s dangerousness, ‘‘[t]he expert testi-
mony is in conflict as to whether [the acquittee] remains
a danger to himself or to others or to the property of
others.’’ Although the acquittee presented the testimony
of an expert who testified that he did not present a
danger either to himself or to others, the court was free
to reject that testimony in favor of the findings of the
board and Grayson. As our Supreme Court has noted,
‘‘the goals of a treating psychiatrist frequently conflict
with the goals of the criminal justice system. . . .
While the psychiatrist must be concerned primarily with
therapeutic goals, the court must give priority to the
public safety ramifications of releasing from confine-
ment an individual who has already shown a propensity
for violence. As a result, the determination of danger-
ousness in the context of a mental status hearing
reflects a societal rather than a medical judgment, in
which the rights and needs of the defendant must be
balanced against the security interests of society. . . .
The awesome task of weighing these two interests and
arriving at a decision concerning release rests finally
with the trial court.’’ (Internal quotation marks omit-
ted.) State v. March, supra, 265 Conn. 712.
The court then concluded that, although the acquittee
‘‘is clinically stable in his currently controlled . . .
environment . . . [he] is at great risk to mentally
relapse’’ and, thus, ‘‘the state has proven by clear and
convincing evidence that [the acquittee] at this time
continues to present a risk to the safety of himself or
others or present a danger to himself or others or to
the property of others.’’ The court’s conclusion, which
is logically supported by the evidence before it, is not
that the acquittee, in his currently controlled environ-
ment under the board’s supervision poses a risk of
imminent harm to himself or others, but rather, that if
he were to be released from the board’s supervision
entirely, he would under those circumstances, present
a danger to himself or others. The court followed its
conclusion by ‘‘strongly recommend[ing] to the [b]oard
[that] a transitional plan be in place for [the acquittee]
to engage fully in a conditional release in the Hartford
community in the next twelve months, to then be moni-
tored for compliance in the community for the second
twelve month period of this commitment with the goal
of discharge from the [board] at the end of this two
year commitment provided the acquittee has been
fully compliant.’’
‘‘To the extent that the trial court has made findings
of fact, our review is limited to deciding whether such
findings were clearly erroneous. . . . A finding of fact
is clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
March, supra, 265 Conn. 711. In its decision, the court
clearly credited the testimony and reports of Grayson
and the board, which it was free to do, and found that
the acquittee ‘‘continues to present a risk to the safety
of himself or others . . . .’’ The court’s finding with
regard to the acquittee’s dangerousness was not
clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The crimes with which the acquittee was charged were summarized as
follows by psychologist Justin Winkel, in his psychological assessment dated
March 2, 2011: ‘‘The first victim reported being grabbed by her arm and
neck, dragged to a dark wooded area, threatened with a knife held to her
throat, and forcibly sexually assaulted. The second victim reported being
grabbed by a man in a ski mask, but was able to escape while her screams
attracted nearby people. The third victim reported being attacked by [the
acquittee] while she was entering her car, and was forced to keep her head
down while [the acquittee] drove 10 minutes to an isolated area and then
forcibly sexually assaulted her. This victim reported that [the acquittee]
claimed to have a knife and put on gloves before assaulting her. All of the
victims were adult females and were previously unknown to [the acquittee].’’
2
The board, in its memorandum of decision granting the acquittee full
conditional release, set the following conditions for the acquittee, which
were to remain in effect throughout his conditional release:
‘‘[The Acquittee]’s Responsibilities and Authorizations: Comply with all
conditions of this conditional release; Cooperate with all community provid-
ers and his probation officer as it relates to agency rules, regulations, recom-
mendations and treatment; Participate in a substance abuse program as
deemed appropriate by community providers at least three times per week,
and provide proof of attendance at community meetings to his conditional
release supervisor; Comply with all requirements of Sections 54-250 through
54-261 of the Connecticut General Statutes, cooperate with the Department
of Public Safety and complete all verification of address statements issued
by the Department of Public Safety; Inform his conditional release supervisor
of all medical appointments and medical recommendations; Inform his con-
ditional release supervisor of any missed meetings, sessions or absences
from work; Maintain employment for up to 40 hours per week, which can
be substituted if approved by conditional release supervisor, his probation
officer and other community providers with another viable day treatment
program, volunteer work, educational pursuit or employment activity; Notify
[the Southeastern Mental Health Authority] if unable to arrange transporta-
tion; Provide Releases of Information (ROI), as requested; Submit to a search
of person, residence and property or Internet use by community providers
or any law enforcement officer; Inform any community provider of a change
in mood or behavior; May operate a motor vehicle to travel to and from
work, treatment and leisure/recreational activities with approval from his
conditional release supervisor and Reliance House staff and with proof of
registration and insurance; May be a passenger in a motor vehicle with
someone other than staff with approval by his conditional release supervisor
and Reliance House staff; Utilize a sign in/sign out sheet at his residence; May
travel in his own custody and participate in leisure/recreational activities in
the state of Connecticut between the hours of 6:00 a.m. and 11:00 p.m.; May
travel out of the state of Connecticut to Massachusetts, New York and Rhode
Island to participate in day trips with staff of Reliance House; Carry a copy
of this order when traveling out of the state of Connecticut.
‘‘[The Acquittee]’s Restrictions and Prohibitions: Have no contact or com-
munication with the victims of his crimes, which includes not visiting or
frequenting their places of residence, work or crime scenes, whether they
are present or not; Have no contact with his ex-wife . . . May not transport
minors in a motor vehicle; May only utilize the Internet at the Reliance
House Teamworks Social Club under the supervision of staff; Obey all laws
and promptly report to conditional release supervisor the fact that he has
been arrested for, charged with or questioned by any law enforcement
agent regarding any matter; Not use any alcoholic beverages; Not enter any
establishment where the primary purpose of that establishment is the sale
of alcohol; Not enter the town of Middletown except with community staff
for purposes of treatment or to attend [b]oard meetings; Not leave the state
of Connecticut except as specified above; Not use, possess, handle, traffic
in, transport, or otherwise be involved with any illegal narcotics, dangerous
drugs or controlled substances; Not use any medication without a prescrip-
tion or use over-the-counter medication without notification to conditional
release supervisor; Not own, use, possess, receive, transport or have access
to any firearm, ammunition, defensive or other weapons including but not
limited to his place of work, residence or residences of those he visits; Not
knowingly associate or participate in any activities with persons known to
carry weapons including but not limited to, his place of work, residence or
residences of those he visits; Not knowingly associate with persons who
have been arrested for, charged with, convicted of, or involved in any crimi-
nal activity without the prior authorization of his conditional release supervi-
sor and notification to the [b]oard; Not gamble, which includes government-
sponsored lotteries, or enter any casino grounds.’’
3
Facebook is a social network website. See State v. Altajir, 303 Conn.
304, 306 n.1, 33 A.3d 193 (2012).
4
Gmail is a website based e-mail account provider.
5
On June 8, 2009, following a hearing to consider a modification of condi-
tional release filed by SMHA, requesting a reduction in conditional release
supervision meetings and permission for the acquittee to use the Internet
and e-mail for employment purposes, the board found that the acquittee’s
‘‘community providers and his probation officer agree that employment for
[the acquittee] would be positive and Internet access is important in locating
such employment. Allowing [the acquittee] to have limited access to the
Internet for the purposes of seeking employment under direct supervision
is appropriate and would not constitute a danger to himself or others.’’
6
On September 21, 2009, the board granted an application for out-of-state
travel, permitting the acquittee to travel to South Carolina to visit his mother,
who had suffered a stroke. The board found that the acquittee ‘‘has remained
cooperative with treatment recommendations and has improved his relation-
ship with his mother. [The acquittee]’s sister has communicated with [the
acquittee]’s Conditional Release Supervisor and has been advised of his
travel conditions and stipulations. Under the conditions contained within
the application and this order, the Chairman concludes that [the acquittee]
would not constitute a danger to himself or others while traveling out of
the state to visit his mother . . . .’’ Thereafter, on October 6, 2009, the
board granted a further application for out-of-state travel to permit the
acquittee to attend his mother’s funeral. The board found that the acquittee
‘‘recently traveled out of the state of Connecticut without incident and
complied with all travel requirements. Allowing him to participate in funeral
services for his mother is clinically appropriate and will not increase his
risk to the community or himself.’’
7
The acquittee’s mother died in October, 2009, and his older brother died
in April, 2010. At about the time of the acquittee’s mother’s death, his sister
was diagnosed with breast cancer and, shortly before the acquittee’s cocaine
use, his younger brother was diagnosed with throat cancer.
8
The six month review dated October 11, 2011, showed that the acquittee
has adjusted well to his rehospitalization at CVH, has been compliant with
his treatment program, and has participated in both individual and group
therapies. The report indicated that the acquittee’s depression is recurrent,
but mild, his drug abuse is stable because of his controlled environment,
and that he still suffers from a personality disorder. The report also stated
that the acquittee’s treatment team was developing a plan for his treatment
in the Hartford community. The addendum to that report provided that the
acquittee’s depressive disorder is in remission and that he ‘‘does not present
a substantial risk to himself or others . . . .’’ Zeman responded to this report
and addendum by agreeing that the acquittee’s depression is in remission but
disagreeing as to any substance abuse issues, asserting that there is no
recurrent pattern of abuse.
9
The court properly included § 17a-593 (c) in its memorandum of decision
and ensured that the parties timely filed all necessary petitions, notices,
and reports.
10
The court properly set forth the state’s burden of proof in its memoran-
dum of decision as follows: ‘‘In a proceeding such as this brought pursuant
to Connecticut General Statutes § 17a-593 (c) to extend an acquittee’s com-
mitment past the maximum commitment date, the state must prove by clear
and convincing evidence that the acquittee is currently mentally ill and
poses a danger to himself or others or property or is gravely disabled.’’
11
There is no dispute between Grayson and Zeman, based on the diagnoses
made in their most recent supplemental reports, that the acquittee suffers
from ‘‘major depressive disorder, recurrent, severe, with psychotic features,
in full remission,’’ or that this is the mental illness germane to the court’s
mental illness determination.
12
Section 17a-581-2 (a) (5) of the Regulations of Connecticut State Agen-
cies defines ‘‘mental illness,’’ in part, as follows: ‘‘[A]ny mental illness in a
state of remission which may become active with reasonable medical proba-
bility.’’
13
‘‘[T]he ultimate determination of mental illness and dangerousness is a
legal decision.’’ State v. Putnoki, 200 Conn. 208, 219, 510 A.2d 1329 (1986).
‘‘Although psychiatric testimony as to the defendant’s condition may form
an important part of the trial court’s ultimate determination, the court is
not bound by this evidence. . . . It may, in its discretion, accept all, part,
or none of the experts’ testimony. . . . In reaching its difficult decision,
the court may and should consider the entire record available to it, including
the defendant’s history of mental illness, his present and past diagnoses,
his past violent behavior, the nature of the offense for which he was prose-
cuted, the need for continued medication and therapy, and the prospects
for supervision if released.’’ (Citations omitted.) Id., 221.
14
The court stated: ‘‘Dr. Zeman readily admitted that he was in disagree-
ment with Dr. Grayson’s opinions as well as in disagreement with some of
[the acquittee’s] current treaters . . . .’’
15
The regulations define ‘‘danger to self or others’’ as ‘‘the risk of imminent
physical injury to others or self, and also includes the risk of loss or destruc-
tion of the property of others.’’ Regs., Conn. State Agencies § 17a-581-2 (a)
(6). ‘‘ ‘Imminent’ is defined as ‘ready to take place; esp: hanging threateningly
over one’s head . . . .’ ’’ State v. Harris, 277 Conn. 378, 389, 890 A.2d 559(2006), quoting Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).
16
The court referenced this standard by quoting State v. Warren, 100
Conn. App. 407, 433, 919 A.2d 465 (2007), stating that ‘‘[t]he determination
of dangerousness . . . reflects a societal rather than a medical judgment,
in which the rights . . . of the [acquittee] must be balanced against the
security interests of society.’’ (Internal quotation marks omitted.) It further
cited State v. Putnoki, supra, 200 Conn. 221, when it stated that ‘‘the rights
and needs of a defendant must be balanced against the security interests
of society. That determination rests with the trial court.’’