State v. Dyous ( 2020 )

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STATE OF CONNECTICUT v. ANTHONY DYOUS
(AC 42006)
DiPentima, C. J., and Keller and Bear, Js.
Syllabus
The defendant 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 granting the state’s petition filed pursuant
to statute (§ 17a-593) to extend his commitment to the jurisdiction of
the Psychiatric Security Review Board, claiming that the court improp-
erly found that, at the time of the state’s petition, he was mentally ill
and dangerous to himself or others. Following a hearing on the state’s
petition, the board determined that the acquittee remained an individual
with psychiatric disabilities and, if he were discharged from the jurisdic-
tion of the board, he would present a danger to himself or others.
Thereafter, the court held a hearing and granted the state’s petition and
extended the acquittee’s commitment to the board for an additional
four years. From the judgment rendered thereon, the acquittee appealed
to this court. Held that the trial court’s findings that the acquittee, at
the time of the petition to extend his commitment, suffered from a
mental illness and that he would present a danger to himself or others
as a result of his mental illness if released from the jurisdiction of the
board, were not clearly erroneous: the court found both the board’s
report, which summarized the acquittee’s mental health history and set
forth his multiple diagnoses, and the testimony of G, the acquittee’s
treating psychiatrist, to be credible, at the outset of the board’s report,
the participating board members attested to their presence at the hear-
ing, that they had reviewed the record, and that the report issued to
the court was based entirely on the record, the law and the board’s
specialized knowledge and familiarity with the acquittee, and the totality
of the evidence supported the court’s finding that the acquittee presented
a danger to himself or others if released from the jurisdiction of the
board, including a review of the acquittee’s lengthy struggle with mental
illness, his failure to cooperate with treatment and medication recom-
mendations and his past violent behaviors and mental health decompens-
ations when outside of a maximum security setting.
Argued January 7—officially released June 23, 2020
Procedural History
Petition for an order extending the defendant’s com-
mitment to the Psychiatric Security Review Board,
brought to the Superior Court in the judicial district of
Windham and tried to the court, J. Fischer, J.; judgment
granting the petition, from which the defendant
appealed to this court. Affirmed.
Richard E. Condon, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Anne F. Mahoney, state’s
attorney, and Andrew J. Slitt, assistant state’s attorney,
for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Anthony Dyous
(acquittee),1 appeals from the judgment of the trial court
granting the state’s petition to extend his commitment
to the jurisdiction of the Psychiatric Security Review
Board (board) for a period of four years. On appeal,
the acquittee claims that the court improperly found
that, at the time of the state’s petition, he was mentally
ill and dangerous to himself or others. We disagree and,
accordingly, affirm the judgment of the trial court.
The acquittee’s psychiatric history and proceedings
with the criminal court and the board have been detailed
extensively in State v. Dyous, 307 Conn. 299, 53 A.3d
153 (2012) (Dyous I), and State v. Dyous, 153 Conn.
App. 266, 100 A.3d 1004 (2014) (Dyous II), appeal dis-
missed, 320 Conn. 176, 128 A.3d 505 (2016) (certification
improvidently granted). These opinions set forth the
following relevant facts and procedural history. On
March 22, 1985, the acquittee was found not guilty by
reason of mental disease or defect of two counts of
kidnapping in the first degree, two counts of threatening
in the second degree, and one count of carrying a dan-
gerous weapon.2 Dyous II, supra, 268. The trial court
committed the acquittee to the custody of the Commis-
sioner of Mental Health for a period not to exceed
twenty-five years. Id. In March, 1985, the acquittee was
transferred to the custody of the board pursuant to
General Statutes § 17a-582. Id.3
Our Supreme Court set forth the details of the events
that led to the acquittee’s initial commitment to the
custody of the board and subsequent events up to this
third petition by the state for his continued commit-
ment. ‘‘Between 1977 and the time of the incident [that]
resulted in his criminal commitment, the [acquittee]
was hospitalized three times in psychiatric facilities.
Thereafter, in December, 1983, the [acquittee] hijacked
a bus carrying forty-seven people, including a child. He
threatened the driver with a bomb and nerve gas, and
stated he had been asked by God to deliver a message.
During and after this incident, the [acquittee] exhibited
signs of delusional thinking and symptoms of psychosis.
The [acquittee] was arrested, found not guilty by reason
of [insanity] and committed . . . for a period of
twenty-five years. The [acquittee] was confined to the
Whiting Forensic Institute [(Whiting), a maximum secu-
rity psychiatric facility] for a period of time and then
transferred to . . . Norwich State Hospital.
‘‘On January 17, 1986, the [acquittee] escaped from
Norwich [State Hospital] with a female peer, and they
traveled to South Carolina, to Texas and, finally, to
Mexico. When [the acquittee was] located in Mexico in
September, 1986, [he] exhibited symptoms of psychosis.
He was returned to Connecticut and, upon admission
to Whiting, was found to be grossly psychotic and expe-
riencing auditory and visual hallucinations as well as
grandiose and persecutory delusions. While at Whiting,
he was thereafter involved in a violent incident [that
resulted in his own injuries, as well as injuries to staff
members] and other patients.
‘‘In 1989, based on his clinical stability, the [acquittee]
was transferred to Norwich [State Hospital]. From [1990
through 1992], he was granted a series of temporary
leaves [that] were terminated when he rendered a posi-
tive drug screen for cocaine. After a [period of] time,
temporary leaves were reinstated, and, in July, 1995,
he was granted a conditional leave. In June, 1996, the
[acquittee] began to exhibit symptoms of psychosis and
admitted that he had stopped taking his antipsychotic
medication. He was admitted to Connecticut Valley
Hospital but refused some of his medications. A few
days later, he escaped from [that] hospital, and, several
days thereafter, he was found . . . [and] returned to
Whiting. At that time, he was exhibiting psychotic and
paranoid symptoms, as well as delusional thinking. He
became violent and was placed in four point restraints
for six hours.
‘‘During the next several years, the [acquittee]
remained at Whiting and was involved in a series of
assaults. From 1996 [through] 2005, the [acquittee’s]
behavior at Whiting was characterized by chronic
refusal to take medication, irritability, mood lability,
grandiosity, paranoid ideation, rule breaking, physical
altercations with peers and refusal to engage meaning-
fully in treatment.
‘‘In 2005, there was a reduction in the [acquittee’s]
aggression, an improvement in his participation in treat-
ment and increased cooperation with his treatment
team. Based on [these improvements], in mid-2006, the
[acquittee] was transferred to Dutcher [Hall of Connect-
icut Valley Hospital], a less secure [area] on the hospital
campus. Treatment records after the transfer show that
the [acquittee exhibited] episodic irritability, mood
instability, grandiosity, paranoid ideation and [that] he
refused to take his medication, claiming [that] he could
control his behavior. Ultimately, the treatment team
convinced him to take . . . mood stabilizing medica-
tion, but [he then] changed his mind and refused. A
treatment impasse ensued, and the [acquittee] was
transferred to another unit. In the new unit, his psychia-
trist noted mood lability and ongoing conflicts with
peers. After working closely with the [acquittee], the
psychiatrist was able to convince him to take the mood
stabilizing medication, Trileptal. Even after starting Tri-
leptal, however, the [acquittee] had another altercation
with a peer and was again transferred. In December,
2009, he was transferred to yet another unit following
problems with another patient.
‘‘During his twenty-five year term of commitment to
the jurisdiction of the board, the [acquittee] filed two
applications for discharge, the first in 2003 and the
second in 2007. The trial court dismissed both applica-
tions. In dismissing the more recent application, the
trial court observed that [t]here is little or no dispute
that the [acquittee] suffers from a long-standing mental
illness. . . . [O]n January 31, 2007, the [acquittee’s]
diagnosis included delusional disorder, grandiose and
persecutory type, and, most recently, the [acquittee] has
been diagnosed with schizoaffective disorder, bipolar
type. The trial court also observed that [t]he evidence
is undisputed that, if the [acquittee] is released [into]
the community, he would require supervision and treat-
ment and that, without such services, he would be a
danger to himself or others. The court further noted
that [t]he [acquittee’s] history belies his representation
that he will continue to engage in supervision and treat-
ment in the community or that he is ready to be dis-
charged without mandatory supervision. The records
are replete with evidence of substance abuse, noncom-
pliance with treatment recommendations and repeated
failures to meaningfully engage in treatment. Moreover,
throughout his commitment, the [acquittee] has demon-
strated little insight into his illness and, instead, has
sought to justify or rationalize his behavior. Addition-
ally, despite a history of psychotic episodes, the
[acquittee] remains steadfast in his opposition to taking
antipsychotic medication [even] [t]hough medication
has been shown to ameliorate [the acquittee’s] symp-
toms . . . . Finally, the court observed that, even in
the controlled environment of his inpatient hospitaliza-
tion, the [acquittee] has repeatedly demonstrated
behavior [that] has put others at risk of harm.
‘‘In 2009, approximately one year before the end of
the [acquittee’s] term of commitment, the state filed a
petition for an order of continued commitment, arguing
that the [acquittee] remained mentally ill and that his
discharge would constitute a danger to himself or oth-
ers.’’ (Internal quotation marks omitted.) Dyous I,
supra, 307 Conn. 304–307. Our Supreme Court affirmed
the judgment of the trial court granting the state’s peti-
tion to extend the acquittee’s commitment for an addi-
tional three years. Id., 302, 304.
On April 24, 2012, the state filed a second petition for
continued commitment on the bases that the acquittee
remained mentally ill and that his discharge from the
custody of the board would constitute a danger to him-
self or others. Dyous II, supra, 153 Conn. App. 270. After
a two day hearing, the court summarized the acquittee’s
history. Id., 270–71. It then set forth, in greater detail,
the relevant facts that had occurred subsequent to the
first extension of the acquittee’s commitment. Id., 271.
‘‘In March, 2010, the [acquittee] described himself as a
[prisoner of war], who was being held in violation of
human rights standards. On April 26, 2010, he assaulted
another patient by hitting the patient with a radio, lead-
ing to his conviction on April 8, 2011, of assault in the
third degree. Chemical tests administered at about that
time revealed that for more than two years, the
[acquittee] falsely had indicated that he was taking his
medication; he surreptitiously was spitting out the pills.
‘‘The court found the following events outlined in the
board’s report. On December 29, 2010, the [acquittee]
pushed another patient to the floor and grabbed the
patient by the throat. The incident ended only when
hospital police intervened. In March, 2011, a female
patient complained of the [acquittee’s] behavior, which
was characterized as sexual harassment and unwel-
come (but not, apparently, criminal) touching. Between
March, 2010, and June, 2012, the [acquittee’s] posture
toward the medical staff was influenced by his belief
that his commitment was illegal. He refused to engage
in therapy or to take his medication. The staff deter-
mined that the [acquittee] continued to be mentally ill
and in need of medical attention. In June, 2012, the
[acquittee] exhibited greater cooperation and self-con-
trol, but he continued to refuse to take his medication.
The results of the [acquittee’s] September 15, 2012 psy-
chological assessment revealed that he had no current
acute symptoms of bipolar disorder, and that, within an
institutional setting he has refrained from using alcohol
and illegal drugs.
‘‘At the hearing on the second petition to extend
the [acquittee’s] commitment, the board’s report to the
court was placed into evidence, and Mahboob Aslam,
the [acquittee’s] treating psychiatrist, testified. The
court noted Aslam’s expert testimony that interepisodal
recovery while a patient remains in a highly structured
environment is common; equally common . . . is the
predictability of a relapse when a person leaves that
structure, as the person lacks insight into his malady,
and resists taking medication and continuing in therapy.
‘‘In its memorandum of decision, the court found that
a clinical consensus existed that the [acquittee] remains
mentally ill and, despite his present state of relative
lucidity, needs medication, which he refuses to take,
and support, which he rejects. The court also found
that if the [acquittee] is to become a person who is not
a danger to himself or others, he needs to take his
medication and accept support. The court found by
clear and convincing evidence that, at the time of the
hearing, the [acquittee] presented a danger to himself
or to others such that he would be a risk of imminent
physical injury to others or to himself if he were
released.’’ (Internal quotation marks omitted.) Dyous
II, supra, 153 Conn. App. 271–72. This court affirmed
the extension of the defendant’s commitment to March
18, 2018. See id., 267–68, 272.
The present appeal arises from the December 8, 2017
petition for an order of continued commitment filed
by the state pursuant to General Statutes § 17a-593.
Therein, the state represented that the acquittee
remained mentally ill to the extent that his discharge
would constitute a danger to himself or others. On Janu-
ary 5, 2018, the board held a hearing to review the
acquittee’s status. See General Statutes § 17a-593 (d).
Neither the acquittee nor his attorney attended this pro-
ceeding.
The report of the board summarized the acquittee’s
mental health history and set forth his multiple diagno-
ses. Ultimately, it found that he remained an individual
with psychiatric disabilities and that were he discharged
from the jurisdiction of the board, he would present a
danger to himself or others.
On March 12, 2018, the court held a hearing on the
state’s petition. The board’s report was admitted into
evidence. Additionally, the court heard testimony from
James Gusfa, the acquittee’s treating psychiatrist at
Whiting for the preceding eighteen months. After the
presentation of evidence and arguments of counsel, the
court rendered its oral decision. At the outset, it found
both the board’s report and Gusfa’s testimony to be
credible. The court then noted the seriousness of the
criminal conduct in this case, and the acquittee’s lack of
participation in recommended treatment groups, poor
insight into his mental illness and refusal to take recom-
mended medication. It also referred to the acquittee’s
altercation with another patient, where the acquittee
had acted in a confrontational and ‘‘very aggressive’’
manner. The court additionally pointed out that Gusfa
could not or would not move the acquittee to a less
secure setting. In conclusion, the court found, by clear
and convincing evidence, that the acquittee was men-
tally ill and a danger to himself or others if released.
Accordingly, it granted the state’s petition and extended
the acquittee’s commitment to the board for an addi-
tional four years. This appeal followed. Additional facts
will be set forth as needed.
On appeal, the acquittee claims that the court’s find-
ings that he was mentally ill, and, if released from the
jurisdiction of the board, posed a danger to himself
or others, were clearly erroneous. Specifically, with
respect to the former, the acquittee argues that there
is no evidence that the board or Gusfa had relied on
the current version of the Diagnostic and Statistical
Manual of Mental Disorders (DSM-5)4 of the American
Psychiatric Association in determining the acquittee’s
mental health diagnosis, as required by § 17a-581-2 of
the Regulations of Connecticut State Agencies. Regard-
ing the latter, the acquittee contends that the state failed
to prove, by clear and convincing evidence, that he
posed a risk of imminent physical injury to himself or
others if discharged from the custody of the board. We
are not persuaded by either of the acquittee’s
arguments.
We begin with a review of our jurisprudence regard-
ing the board and acquittees and then set forth our
standard of review. When a criminal defendant is found
not guilty by reason of mental disease or defect; see
General Statutes § 53a-13;5 the court holds a hearing to
assess that individual’s mental status and to determine
whether confinement or release is appropriate.6 See
State v. Harris, 277 Conn. 378, 382–83, 890 A.2d 559(2006); see also General Statutes § 17a-582 (a) and (e);
State v. Kelly, 95 Conn. App. 31, 33–34, 895 A.2d 801(2006). If the acquittee fails to meet his burden of proof
that he should be discharged, the court must commit
the acquittee to the jurisdiction of the board for a term
not exceeding the maximum sentence that could have
been imposed had there been a criminal conviction.
See State v. Harris, supra, 383. The board determines
where to confine the acquittee and holds hearings and
periodically reviews the progress of the acquittee to
determine whether conditional release or discharge is
warranted. See id.; see also General Statutes §§ 17a-583
through 17a-592. The acquittee also may apply periodi-
cally to be discharged from the board’s jurisdiction. See
General Statutes § 17a-593 (a)–(d); State v. Vasquez,
194 Conn. App. 831, 836–37, 222 A.3d 1018 (2019), cert.
denied, 334 Conn. 922, 223 A.3d 61 (2020); State v.
Jacob, 69 Conn. App. 666, 669, 798 A.2d 974 (2002).
This confinement, although resulting initially from an
adjudication in the criminal justice system, does not
constitute a punishment; rather, it serves the purposes
of treating the acquittee’s mental illness and protecting
the acquittee and society. See State v. Damone, 148
Conn. App. 137, 164–65, 83 A.3d 1227, cert. denied, 311
Conn. 936, 88 A.3d 550 (2014); see also State v. Harris,
supra, 277 Conn. 394 (primary purposes of commitment
are treatment of mental illness and protection of soci-
ety, not punishment of acquittee); Payne v. Fairfield
Hills Hospital, supra, 215 Conn. 683–84 (same); see
generally General Statutes § 17-593a (g) (at continued
commitment hearing, primary concern is protection of
society). ‘‘The committed acquittee is entitled to release
when he has recovered his sanity or is no longer danger-
ous. . . . As he was not convicted, he may not be pun-
ished. His confinement rests on his continuing illness
and dangerousness.’’ (Internal quotation marks omit-
ted.) State v. Damone, supra, 165.
At the conclusion of the commitment period, the state
has the option to seek an extension.7 ‘‘When an acquittee
reaches the end of the definite term of commitment
set by the court, the state may submit a petition for
continued commitment if reasonable cause exists to
believe that the acquittee remains a person with psychi-
atric disabilities . . . to the extent that his discharge
at the expiration of his maximum term of commitment
would constitute a danger to himself or others . . . .
General Statutes § 17a-593 (c).8 After the state files its
petition, the board is required, by statute, to submit a
report to the court setting forth the board’s findings
and conclusions as to whether discharge is warranted.
General Statutes § 17a-593 (d).9 When making its deci-
sion, the Superior Court is not bound by the board’s
recommendation, but considers the board’s report in
addition to other evidence presented by both parties
and makes its own finding as to the mental condition
of the acquittee . . . .’’ (Footnotes added; internal quo-
tation marks omitted.) State v. Harris, supra, 277 Conn.
384; see also Dyous I, supra, 307 Conn. 307–309. At this
proceeding, the state must prove the need for continued
commitment by demonstrating, under the clear and con-
vincing evidence standard, ‘‘that the acquittee is cur-
rently mentally ill and dangerous to himself or herself
. . . .’’ (Internal quotation marks omitted.) State v. Har-
ris, supra, 386; see also Dyous I, supra, 307 Conn. 308;
State v. Metz, 230 Conn. 400, 425–26, 645 A.2d 965(1994); State v. Damone, supra, 148 Conn. App. 164. At
this proceeding, however, the court’s primary concern
is the protection of society. Dyous I, supra, 308–309.
We turn now to our standard of review. ‘‘The determi-
nation 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 convic-
tion that a mistake has been committed . . . . Conclu-
sions are not erroneous unless they violate law, logic
or reason or are inconsistent with the subordinate facts.
The court’s conclusions are to be tested by the findings
and not the evidence. . . . Conclusions logically sup-
ported by the finding must stand.’’ (Citation omitted;
internal quotation marks omitted.) State v. Damone,
supra, 148 Conn. App. 165; see also State v. Maskiell,
100 Conn. App. 507, 521, 918 A.2d 293, cert. denied, 282
Conn. 922, 925 A.2d 1104 (2007); State v. Jacob, supra,
69 Conn. App. 680.
The acquittee first argues that the court improperly
found that he suffered from a mental illness at the time
of the state’s third petition. Specifically, he contends
that neither the board’s report nor Gusfa’s testimony,
the two evidentiary sources presented to the court at
the hearing, referred to the DSM-5, and, in light of this
‘‘evidentiary void,’’ the court’s finding of his mental
illness cannot stand.
We begin with the controlling statutory language. Sec-
tion 17a-593 (c) provides: ‘‘If reasonable cause exists
to believe that the acquittee remains a person with
psychiatric disabilities or a person with intellectual dis-
ability 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 expira-
tion, may petition the court for an order of continued
commitment of the acquittee.’’ General Statutes § 17a-
580 (7) provides that ‘‘ ‘[p]sychiatric disability’ includes
any mental illness in a state of remission 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 State v. March, 265 Conn. 697, 704, 706–707, 830
A.2d 212 (2003), our Supreme Court interpreted the
terms ‘‘psychiatric disabilities’’ and ‘‘mental illness or
mental disease.’’10 After setting forth the applicable stat-
utes and regulations, the court concluded: ‘‘Mental ill-
ness means any mental illness or mental disease as
defined by the current Diagnostic and Statistical Man-
ual of Mental Disorders of the American Psychiatric
Association and as may hereafter be amended.’’
(Emphasis added; internal quotation marks omitted.)
State v. March, supra, 706–707; see also State v. Vas-
quez, supra, 194 Conn. App. 838–39; State v. Kalman,
88 Conn. App. 125, 138, 868 A.2d 766, cert. denied, 273
Conn. 938, 875 A.2d 44 (2005).
The report of the board, which was admitted into
evidence as an exhibit at the court’s March 12, 2018
hearing, set forth the following findings of fact: ‘‘[The
acquittee] is a psychiatrically ill individual with the diag-
noses of Bipolar Disorder, Most Recent Episode Hypo-
manic, [i]n Full Remission; Unspecified Personality Dis-
order, With Paranoid, Narcissistic and Antisocial Traits
and Alcohol and Cannabis Use Disorder [i]n Sustained
Remission [i]n A Controlled Environment. Since the
[b]oard’s last report to [the] court dated December 27,
2012, [the acquittee] has remained confined in maxi-
mum security, where he has resided since September,
2010. [The acquittee] had a lengthy psychiatric history
with intermittent episodes of assaultive and aggressive
behavior, treatment noncompliance and two escapes
from treatment settings.
‘‘[The acquittee] recently demonstrated some
improvement in his treatment group participation. How-
ever, he has resisted attempts to encourage and moti-
vate him to transfer to a less restrictive hospital setting,
maintaining a fixed belief that he has been illegally
confined. Despite his many years of inpatient treatment,
[the acquittee] has poor insight into the mental illness
that brought him under the jurisdiction of the [b]oard
or the need for treatment and medication. Even within
the highly structured and supervised maximum security
setting, he has been uncooperative with treatment and
medication recommendations. As a result, his treatment
team has been unable to adequately assess his risk,
frustrating their efforts to aid his progress. Additionally,
given that [the acquittee] has not resided in the commu-
nity since 1996, he does not have an established support
network available to assist him if discharged. Based on
the aforementioned, the [b]oard finds that [the
acquittee] cannot currently reside safely in the commu-
nity and should remain under the jurisdiction of the
[b]oard.
‘‘From the preceding facts, the [b]oard concludes that
the evidence is clear and convincing that [the acquittee]
remains an individual with psychiatric disabilities to
the extent that his discharge from the jurisdiction of the
[b]oard would constitute a danger to himself or others.’’
Gusfa testified at the March 12, 2018 court hearing
that he had been treating the acquittee for approxi-
mately eighteen months. He testified that he would not
recommend that the acquittee be transferred from maxi-
mum security to a less restrictive setting due to his lack
of participation with his treatment team. Gusfa also
indicated that the acquittee had ‘‘poor’’ insight into his
psychiatric illness and his need for medication and con-
tinued treatment. He opined that, given the acquittee’s
historical risk factors, he would be vulnerable to psychi-
atric regression and at risk behaviors without a struc-
tured environment and intense mental health support.
On cross-examination, Gusfa stated that the acquittee
presently was diagnosed with bipolar disorder. On redi-
rect examination, Gusfa testified that the acquittee
would benefit from psychiatric medication and that his
refusal to be medicated constituted an ongoing risk
factor. Neither the board nor Gusfa specifically men-
tioned or referred to the DSM-5.
The court found both the board’s report and Gusfa’s
testimony to be credible. It then made the following
findings: ‘‘[The] court is particularly taken, but not
exclusively taken, by the fact that . . . this was a seri-
ous crime to begin with, extremely serious crime. And
that since that time and especially since . . . Gusfa’s
been involved, the—[the acquittee] is minimally
involved in treatment. He doesn’t participate in the rec-
ommended groups; he refuses to meet with the teams.
He has poor insight into his mental illness. He refused
to take the medication which has been recommended.
‘‘At least in a second altercation with another patient,
according to the doctor, which the court credits, [the
acquittee] became more than a little confrontational
and very aggressive. And he’s—while he’s okay, he can
participate in [a] maximum security setting, he—he
can’t—[Gusfa] cannot or would not put him in a less
secure setting.
‘‘So based upon all those risk factors, the court finds
it’s clearly—it’s clear and convincing evidence that the
acquittee is mentally ill. He’s mentally ill—[in] that he’s
got bipolar disorder, most recent episode hypomania,
manic, unspecified personality disorder with paranoid
narcissistic and antisocial traits.’’
The question, therefore, is whether the court’s finding
that the acquittee, at the time of the December 8, 2017
petition to extend his commitment, suffered from a
mental illness, as defined by our statutes and regula-
tions, was clearly erroneous when neither the board’s
report nor the sole witness to testify at the hearing
specifically mentioned the DSM-5. We conclude that it
was not.11
The board conducted its hearing on January 5, 2018,
to review the acquittee’s status in response to the state’s
petition and issued its report approximately two weeks
later on January 22, 2018. The composition of the board
is noteworthy. ‘‘The . . . board is a six member auton-
omous, administrative body within the [D]epartment of
[M]ental [H]ealth and [A]ddiction [S]ervices that over-
sees the involuntary commitment of people found not
guilty by reason of mental disease or defect. . . . The
board’s membership must include a psychiatrist, a psy-
chologist, a probation expert, a layperson, an attorney
who is licensed in Connecticut, and a layperson with
experience in victim advocacy. General Statutes § 17a-
581 (b).’’ (Citations omitted.) State v. Harris, supra,277 Conn. 381 n.5; see also State v. Long, 268 Conn.
508, 519–20, 847 A.2d 862, cert. denied, 543 U.S. 969,
125 S. Ct. 424, 160 L. Ed. 2d 340 (2004).12 Under the
acquittee statutory scheme, the board possesses gen-
eral and specific familiarity with all acquittees and is
better equipped than the courts to monitor their com-
mitment. State v. Long, supra, 536.
At the outset of its report, each of the participating
board members attested that he or she was present at
the hearing, had reviewed the record, and that the report
issued to the court was ‘‘based entirely on the record,
the law, and the [b]oard’s specialized knowledge and
familiarity with the acquittee.’’ (Emphasis added.)
Inherent in these statements is a recognition by the
members of the board of the applicable statutes; see
General Statutes §§ 17a-580 (7) and 17a-593 (c); regula-
tions; see Regs., Conn. State Agencies § 17a-281 (2) (a)
(5); and the case law interpreting those items. As our
Supreme Court explained in State v. March, supra, 265
Conn. 706–709, the applicable statutes and regulations,
when read in concert, establish the requirement that
the board use the current Diagnostic and Statistical
Manual of Mental Disorders of the American Psychiatric
Association13 in determining mental illness. The board,
with its expertise and general and specific knowledge
of acquittees that furthers the legislative goal of the
efficient management of the recommitment process;
see State v. Long, supra, 268 Conn. 536; would be aware
of the applicable definition of mental illness. See also
Dyous I, supra, 307 Conn. 324 (system applicable to
acquittees accords central role to board).
In light of the educational and professional back-
grounds of the members of the board, and their attesta-
tions that the report was based on the controlling law,
we disagree with the acquittee that the court’s finding
of mental illness was clearly erroneous. The detailed
information in the board’s report, coupled with Gusfa’s
testimony, support the court’s finding that the acquittee
suffered from a mental illness despite the absence of
a specific reference to the DSM-5. As a general matter,
‘‘Connecticut courts have refused to attach talismanic
significance to the presence or absence of particular
words or phrases.’’ State v. Janulawicz, 95 Conn. App.
569, 576 n.6, 897 A.2d 689 (2006); see also State v.
Damone, supra, 148 Conn. App. 166–67 (failure to use
‘‘magic words’’ did not render finding that acquittee
suffered from mental illness clearly erroneous (internal
quotation marks omitted));14 State v. Peters, 89 Conn.
App. 141, 146, 872 A.2d 532 (court’s failure to use term
‘‘psychiatric disabilities’’ before finding that acquittee’s
commitment should be extended did not warrant rever-
sal under plain error doctrine where court clearly made
findings regarding condition of acquittee that met defi-
nition of that term), cert. denied, 274 Conn. 918, 879 A.2d
895 (2005). Accordingly, we conclude that the court’s
finding of mental illness was not clearly erroneous.
Next, we turn to the acquittee’s contention that the
court’s finding that he would present a danger to himself
or others as a result of his mental illness if released from
the jurisdiction of the board was clearly erroneous.
Specifically, the acquittee contends that the court
placed too much emphasis on the original incident in
1983 and that the evidence, as a whole, did not rise to
level necessary to extend his commitment. After
reviewing the totality of the record, we cannot conclude
that the court’s finding of dangerousness was clearly
erroneous.
In State v. March, supra, 265 Conn. 709, our Supreme
Court interpreted the phrase ‘‘[d]anger to self or others
. . . [to mean] the risk of imminent physical injury to
others or self, including the risk of loss or destruction
of the property of others.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.). See State
v. Kelly, supra, 95 Conn. App. 35; see also State v.
Damone, supra, 148 Conn. App. 170 n.15 (‘‘The regula-
tions define danger to self or others as the risk of immi-
nent physical injury to others or self, and also includes
the risk of loss or destruction of the property of others.
. . . Imminent is defined as ready to take place; esp:
hanging threateningly over one’s head . . . .’’ (Citation
omitted; internal quotation marks omitted.)).
We iterate that the determination of whether an
acquittee posed a danger to himself or others such that
his commitment to the jurisdiction of the board should
be extended presents a question of fact subject to the
deferential clearly erroneous standard of review. See
State v. March, supra, 265 Conn. 709, 711. A finding is
clearly erroneous when there is no evidence in the
record to support it or when there is some evidentiary
support but nonetheless the reviewing court, on the
entire evidence, is left with definite and firm conviction
that a mistake has been committed. See, e.g., State v.
Maskiell, supra, 100 Conn. App. 521. Finally, we are
mindful of our limited role in this process. ‘‘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 [the]
decisions of the [trial court], who is usually in a superior
position to appraise and weigh the evidence.’’ (Internal
quotation marks omitted.) State v. Jacob, supra, 69
Conn. App. 680.
In making the factual finding regarding dangerous-
ness, the trial court balances the different, and some-
times competing, considerations at issue. ‘‘[T]he goals
of a treating psychiatrist frequently conflict with the
goals of the criminal justice system. . . . While the
psychiatrist must be concerned primarily with thera-
peutic goals, the court must give priority to the public
safety ramifications of releasing from confinement an
individual who has already shown a propensity for vio-
lence. As a result, the 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. . . . The awe-
some task of weighing these two interests and arriving
at a decision concerning release rests finally with the
trial court.’’ (Internal quotation marks omitted.) State
v. March, supra, 265 Conn. 712; see State v. Jacob, supra,
69 Conn. App. 677; see also State v. Harris, supra,277 Conn. 384 (court not bound by board’s report but
considers additional evidence and makes own finding
as to acquittee’s mental condition); State v. Putnoki,
200 Conn. 208, 221, 510 A.2d 1329 (1986) (determination
of dangerousness in context of mental status hearing
reflects societal, rather than medical, judgement). Most
importantly, ’’[t]he ultimate determination of mental
illness and dangerousness is a legal decision . . . in
which the court may and should consider the entire
record available to it, including the [acquittee’s] his-
tory 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 continued
medication and therapy, and the prospects for supervi-
sion if released.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) State v. Damone,
supra, 148 Conn. App. 171; see also State v. Jacob, supra,
681 (although court may choose to attach special weight
to testimony of experts at hearing, ultimate determina-
tion of mental illness and dangerousness is legal
decision).
Here, the court credited both the board’s report and
Gusfa’s testimony. The board specifically found that
the acquittee has a lengthy psychiatric history with
intermittent episodes of assaultive and aggressive
behavior, treatment noncompliance and two escapes
from treatment settings. The board noted some recent
improved participation in his treatment group, but also
commented on his resistance to attempts to encourage
and motivate him to transfer to a less restrictive hospital
setting. The board also observed that, despite his many
years of treatment, the acquittee demonstrated poor
insight into his mental illness, or the need for treatment
and medication. It also stated that even in the highly
structured supervised maximum security setting, the
acquittee had not cooperated with treatment and medi-
cation recommendations, frustrating efforts by his
treatment team to aid his progress. Finally, the board
indicated that the acquittee lacked an established sup-
port network in the community. In addition to its gen-
eral acceptance of the board’s report, the court, in its
oral decision, referenced many of the board’s specific
comments in support of its finding that the acquittee
was a danger to himself or others.
Additionally, the board noted in its report that, in
2013, the acquittee had made a ‘‘veiled threat’’ directed
at one of his treating psychiatrists and left a ‘‘concerning
voicemail’’ for the chief executive officer of Connecticut
Valley Hospital. Around that time, the acquittee also
‘‘lunged at’’ and ‘‘picked up a side table and threw it
at’’ a nurse after being offered prescribed medication.
After being placed in restraints, the acquittee threat-
ened an on call psychiatrist and the unit director. After
being transferred to a different unit, the acquittee did
not act in an aggressive manner, but he continued to
refuse to meet with his treatment team as a whole,
resulting in the team’s inability to fully assess his risk
and protective factors.
There was also evidence in the board’s report that
the acquittee’s poor acceptance and understanding of
his mental illness contributed to the actions regarding
the hijacking of the bus and that his risk factors include
alcohol and marijuana abuse. The report also indicated
that the acquittee ‘‘has a history of failing [c]onditional
[r]elease, escape from the hospital, medication noncom-
pliance and deceptiveness about his medication non-
compliance.’’ The report noted that the acquittee’s psy-
chiatric treatment has been largely unsuccessful and
that he continued to demonstrate a paranoid world
view. Although the acquittee was not considered to be
an acute risk in his current highly structured maximum
security environment, his oppositional attitude and his-
tory of escape hindered the acquittee’s ability to move
to a less secure setting. Gusfa opined to the board
that the acquittee ‘‘was capable of impulsive behavior
without any regard to his mental health needs in a less
structured setting,’’ and that he ‘‘did not have much
confidence that [the acquittee] would stay allied with
therapeutic supports in a [less restrictive environ-
ment].’’ Gusfa also expressed a concern that the effects
of additional stressors, such as substance abuse, could
leave the acquittee more prone to acute psychiatric
decompensations. In sum, Gusfa believed that the
acquittee ‘‘had not yet attained an adequate level of
clinical stability to permit his return to the community.’’
The court properly considered the totality of the evi-
dence in finding that the acquittee presented a danger
to himself or others if released from the jurisdiction of
the board. See State v. Putnoki, supra, 200 Conn. 221;
State v. Jacob, supra, 69 Conn. App. 688. That calculus
included a review of the acquittee’s lengthy struggle
with mental illness,15 his failure to cooperate with treat-
ment and medication recommendations and his past
violent behaviors and mental health decompensations
when outside of a maximum security setting. ‘‘[I]t also
comports with common sense to conclude . . . that
someone whose mental illness was sufficient to lead
him to commit a dangerous crime, and whose mental
illness demonstrably has persisted despite years of
intensive treatment, is someone whose prospective
release raises a special concern for public safety.’’
Dyous I, supra, 307 Conn. 329. The evidence supports
the court’s finding that, if the acquittee were to be
released from the jurisdiction of the board, he would
pose a danger to himself or others. State v. Damone,
supra, 148 Conn. App. 175. After reviewing the totality
of the evidence, we conclude that the court’s finding
of dangerousness was not clearly erroneous. The defen-
dant’s claim, therefore, must fail.
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 [General Statutes] § 53a-13 . . . .’’ (Internal
quotation marks omitted.) State v. Vasquez, 194 Conn. App. 831, 832 n.1,
222 A.3d 1018 (2019), cert. denied, 334 Conn. 922, 223 A.3d 61 (2020); see
also General Statutes § 17a-580 (1); Regs., Conn. State Agencies § 17a-581-
2 (a) (2).
2
See General Statutes §§ 53a-92 (a) (1), 53a-62 (a) (1) and 53-206, respec-
tively.
3
See generally Payne v. Fairfield Hills Hospital, 215 Conn. 675, 682–83
n.5, 578 A.2d 1025 (1990) (noting statutory enactments that created and
empowered board, including its jurisdiction over all acquittees confined
prior to its effective date).
4
The acquittee’s counsel sent a letter, pursuant to Practice Book § 67-10,
to this court confirming that the DSM-5 was published in 2013.
5
General Statutes § 53a-13 (a) provides: ‘‘In any prosecution for an offense,
it shall be an affirmative defense that the defendant, at the time the defendant
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.’’
Our Supreme Court has noted that ‘‘[a] verdict of not guilty by reason of
mental disease or defect establishes two facts: (1) the person committed
an act that constitutes a criminal offense; and (2) he committed the act
because of mental illness.’’ State v. Long, 268 Conn. 508, 540, 847 A.2d 862,
cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004).
6
‘‘The statutory scheme that applies to . . . acquittees can be found at
General Statutes §§ 17a-580 through 17a-603, inclusive.’’ State v. Jacob, 69
Conn. App. 666, 675 n.8, 798 A.2d 974 (2002).
7
Until the maximum period of confinement has expired, if the acquittee
seeks a discharge from the board’s jurisdiction, he or she must show by a
preponderance of the evidence that he is not dangerous. Thereafter, ‘‘if the
state seeks to continue the acquittee’s commitment, it must then carry the
mentally ill and dangerous.’’ State v. Jacob, supra, 69 Conn. App. 687.
8
General Statutes § 17a-593 (c) 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.’’ Our Supreme Court has held that the time
frame for the filing of the petition to extend a commitment is directory and
not subject to dismissal on the grounds of untimeliness unless such delay
has prejudiced the acquittee. State v. Metz, 230 Conn. 400, 408–11, 645 A.2d
965 (1994).
9
General Statutes § 17a-593 (d) provides: ‘‘The court shall forward any
application for discharge received from the acquittee and any petition for
continued commitment of the acquittee to the board. The board shall, within
ninety days of its receipt of the application or petition, file a report with
the court, and send a copy thereof to the state’s attorney and counsel for
the acquittee, setting forth its findings and conclusions as to whether the
acquittee is a person who should be discharged. The board may hold a
hearing or take other action appropriate to assist it in preparing its report.’’
10
The terms ‘‘psychiatric disabilities’’ and ‘‘mental illness or mental dis-
ease’’ may be used interchangeably with respect to the statutes and regula-
tions at issue in the present case. See State v. March, supra, 265 Conn.
707 n.13.
11
We do note that it would be a better practice for the state to present
evidence that an acquittee’s diagnosis of a mental illness is based on the
current Diagnostic and Statistical Manual of Mental Disorders of the Ameri-
can Psychiatric Association when seeking to extend a commitment pursuant
to § 17a-593 (c).
12
In the present case, the board acted with five members: ‘‘Sheila Hennes-
sey, [an attorney], Cheryl Abrams, M.S., Susan Blair, M.S., Mark Kirschner,
Ph.D. and Hassan Minhas, M.D.’’ General Statutes § 17a-581 (g) provides in
relevant part that ‘‘[a] majority of the members of the board constitutes a
quorum for the transaction of business . . . .’’
13
This manual has been broadly accepted and recognized as ‘‘an objective
authority on the subject of mental disorders . . . .’’ (Internal quotation
marks omitted.) Fuentes v. Griffin, 829 F.3d 233, 249 (2d. Cir. 2016). We
note that the diagnoses set forth in the board’s report and mentioned by
Gusfa are found in the DSM-5. See American Psychiatric Assn., Diagnostic
and Statistical Manual of Mental Disorders (5th Ed. 2013) pp. 126–27 (bipolar
I disorder, most recent episode hypomanic in full remission); id., 490–91
(alcohol use disorder in sustained remission in controlled environment);
id., 509–10 (cannabis use disorder in sustained remission in controlled envi-
ronment); id., 684 (unspecified personality disorder); id., pp. 841–42, 844, 850,
856 (listing of diagnostic codes, including antisocial personality disorder,
narcissistic personality disorder and paranoid personality disorder). We
further note that, in the past, the acquittee has conceded the fact that he
suffered from a mental illness. See Dyous II, supra, 153 Conn. App. 281.
14
In State v. Damone, supra, 148 Conn. App. 162–63, the trial court, in
concluding that the state had met its burden of proof to extend the acquittee’s
commitment, concluded that, although the acquittee was clinically stable
in his controlled environment, ‘‘if removed from that controlled environment,
[the acquittee] is at a great risk to mentally relapse.’’ (Internal quotation
marks omitted.) On appeal, the acquittee argued that the state had failed
to prove that his mental illness may become active with a reasonable degree
of medical certainty. Id., 166. This court disagreed, noting first that formulaic
or talismanic words were unnecessary under our law. Id., 167. We then
concluded that the evidence supported the finding of a ‘‘great risk [of]
relapse’’ and therefore the court’s finding of mental illness was not clearly
erroneous. (Internal quotation marks omitted.) Id. This reasoning applies
to the present case, where the evidence, taken as a whole, supports the
finding of mental illness, even in the absence of a specific reference to the
DSM-5.
15
Our Supreme Court has stated: ‘‘It is true that the court should take
into consideration the acquittee’s past and present diagnoses in assessing
dangerousness for purposes of a § 17a-593 discharge hearing.’’ State v.
March, supra, 265 Conn. 716.