Opinion
No. CR 84 0023695
July 7, 2006
I. PROCEDUIRAL AND FACTUAL BACKGROUND
On June 4, 1985, the acquittee, Martin Dickinson, was committed to the jurisdiction of the Psychiatric Security Review Board (board/PSRB) after he was found not guilty by reason of mental disease or defect of the charges of sexual assault in the first degree and kidnapping in the second degree. The acquittee was committed to the jurisdiction of the board for a period not to exceed twenty years.
On February 28, 2005, the Tolland State's Attorney petitioned the Court, pursuant to General Statutes § 17a-593(c), for an order of continued commitment of the acquittee. In accordance with § 17a-593, the board held a hearing on April 1, 2005, to prepare a report to the Court. On May 4, 2005, the board submitted its report to this Court. The board found 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." (Board's report dated April 26, 2005, p. 4.) The board recommended that the acquittee be recommitted for a period not to exceed four years. (Board's report, p. 5.)
On May 9, 2005, the acquittee filed a notice of intention to perform a separate examination pursuant to § 17a-593(e). On January 27, 2006, the acquittee submitted to the Court two reports from Dr. John H. Felber and one report from Dr. Peter M. Zeman.
On October 31, 2005, the acquittee filed a motion to strike the board's report, claiming that it was inadmissible and that the admission of the report would violate the acquittee's procedural and substantive due process rights. On November 4, 2005, the acquittee filed a motion to dismiss the State's petition for recommitment on the ground that once an acquittee has reached his or her maximum term, the recommitment procedures pursuant to § 17a-593(c) are unconstitutional in procedure and effect. On January 27, 2006, the board filed a memorandum of law in opposition to the acquittee's motion to strike the board's report. The acquittee also filed the following: a trial memorandum; a post-trial brief discussing State v. Harris, 277 Conn. 378, 890 A.2d 559 (2006); a supplemental post-trial brief regarding Harris; and a filing alerting the Court to the case of Rollins v. State, 2006 Md. Lexis 250, 897 A.2d 821 (2006).
Rollins v. State, supra, 2006 Md. Lexis 250, is a criminal matter from the state of Maryland. In that case, the court held that an "autopsy report, [wherein the opinions, speculations and other conclusions had been redacted] contained non-testimonial hearsay statements in nature that were admissible under either the business or public records exception to the hearsay rule." Id., *3. Because the present matter is not a criminal proceeding and because this Court is not willing to extend the acquittee comparable rights protected under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court will not fully address Rollins v. State in its memorandum of decision. However, the Court notes that the report from the PSRB is non-testimonial in nature. It is required by statute as an aid to the court. Moreover, the report is a decision of a tribunal, which courts generally recognize by judicial notice.
A hearing on the motions and the petition commenced on February 9, 2006, and concluded on May 19, 2006. During that time, the parties were represented by counsel and given an opportunity to be heard. The State presented one witness, Dr. Patrick Fox, who is the consulting forensic psychiatrist at Dutcher Hall, where the acquittee has been housed since October 6, 2004. The acquittee presented the following witnesses: Dr. Peter M. Zeman, a psychologist from the Institute of Living who has evaluated the acquittee twice; Daniel Bannish, the Department of Correction's health service program director; Dr. John J. Hakstein, a psychiatrist in private practice who evaluated the acquittee; Dr. John H. Felber, a psychiatrist who evaluated the acquittee; and William Brady, a human rights officer in the advocacy and grievance program at Connecticut Valley Hospital.
The period of commitment has been extended from June 2005 to August 11, 2006, by agreement of the parties. For the reasons enumerated below, the following are denied: the acquittee's motion to strike; the acquittee's motion to dismiss; and the State's petition for recommitment.
II. DISCUSSION A. Motion to Strike
Although the Court has enumerated only those arguments advanced in the motion to strike, the Court has considered all of the arguments relating to this motion that have been put forth in subsequent filings and at oral argument.
The acquittee filed a motion to strike the board's report and/or the board's opinions and legal conclusions contained in the report based on the following grounds: (1) the report is hearsay and it does not come under any hearsay exceptions; (2) admission of the board's report violates the acquittee's right to procedural due process, specifically the rights to confrontation and fundamental fairness under the Constitution of Connecticut, article first, § 8, and the fourteenth amendment to the United States Constitution; and (3) the board's report is so unreliable and untrustworthy that its admission shocks the conscience in violation of the acquittee's substantive due process rights.
As noted in the acquittee's post-trial brief filed on April 12, 2006, the acquittee's counsel had orally amended the requested relief in the motion to strike to include striking the whole report and/or the conclusions, opinions or recommendations. (See acquittee's post-trial brief and supplemental memorandum of law addressing State v. Harris, p. 3.)
Although the acquittee claims that the report is hearsay and that no hearsay exceptions apply, the Court is not persuaded. The report is mandated by statute and must inform the court of the board's findings, conclusions and recommendations. "[U]nder the acquittee statutory scheme, the board has general and specific familiarity with all acquittees beginning with their initial commitment and, therefore, is better equipped than courts to monitor their commitment." State v. Long, 268 Conn. 508, 536, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004). Moreover, "[p]ursuant to § 17a-593(d) . . . the court must seek the recommendation of the psychiatric security review board"; State v. Metz, 230 Conn. 400, 420, 645 A.2d 965 (1994); and the report must specifically "[set] forth [the board's] findings and conclusions as to whether the acquittee is a person who should be discharged." General Statutes § 17a-593(d).
It is a "well established canon of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results." (Internal quotation marks omitted.) Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 101, 801 A.2d 759 (2002). "[T]he law favors a rational statutory construction and [the court will] presume that the legislature intended a sensible result." (Internal quotation marks omitted.) Interlude, Inc. v. Skurat, 253 Conn. 531, 539, 754 A.2d 153 (2000).
It is the finding of this Court that the legislature did not intend to require courts to solicit a report from the board, which is charged with having such familiarity with, and oversight of, the acquittee and his or her commitment, but not allow such report into evidence. Therefore, the report, with its opinions and conclusions, is admissible in this matter.
In the acquittee's motion to strike, he claims admission of the report would violate his right to procedural due process under article first, § 8, of the Constitution of Connecticut. Thereafter in his post-trial brief, the acquittee claims that such admission violates his procedural due process rights, particularly the common-law and constitutional procedural due process rights of confrontation.
In Harris, the acquittee claimed, inter alia, that admission of the report violated his sixth amendment right to confrontation and his procedural due process rights under article first, § 8, of the Constitution of Connecticut. (See State v. Harris, Conn. Supreme Court Records Briefs, October Term, 2005, Appellant's Brief, pp. 17 27.) Our Supreme Court concluded that the sixth amendment right to confrontation did not apply to continued commitment proceedings because they are not criminal prosecutions and that admission of the report did not violate the acquittee's due process rights. See State v. Harris, supra, 277 Conn. 394. Although the determination of a due process claim requires a fact-based analysis, the Court finds the reasoning in the Harris case to be instructive.
"The United States Supreme Court [has] set forth three factors [which the Connecticut Supreme Court has followed] to consider when analyzing whether an individual is constitutionally entitled to a particular judicial or administrative procedure: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) . . . Due process analysis requires balancing the government's interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures . . .
"The fundamental requisite of due process of law is the opportunity to be heard . . . [which] must be at a meaningful time and in a meaningful manner . . . [T]hese principles require that a [party] have timely and adequate notice detailing the reasons for [the proposed action], and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally." (Citation omitted; internal quotation marks omitted.) State v. Harris, supra, 277 Conn., 395-96.
As the Connecticut Supreme Court concluded in Harris, this Court finds that the interests of the acquittee and the government in the present case are substantial. "[T]here can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty . . . [C]ommitment for any purpose constitutes a significant deprivation of liberty that requires due process protection . . ." (Citation omitted; internal quotation marks omitted.) Id., 396-97. Moreover, "it is undisputed that the state has an interest in confining individuals who, as a result of mental illness, pose a potential danger to themselves or others." (Internal quotation marks omitted.) Id., 397.
Regarding the second factor of "the risk of an erroneous deprivation [of the acquittee's liberty] through the procedures used"; (internal quotation marks omitted) id.; this Court finds that admission of the report does not violate the acquittee's due process rights. The acquittee was provided with notice of the state's petition for order of continued commitment. On April 1, 2005, the board held a hearing to prepare its report to the Court, at which the acquittee appeared and was represented by counsel. At that time, the acquittee had the opportunity to present his own witnesses. See General Statutes § 17a-595; see also State v. Harris, supra, 277 Conn. 397. As the Supreme Court remarked in Harris, under these procedures, the acquittee "had the opportunity to influence the board's decision before it even issued its report to the court." State v. Harris, supra, 277 Conn. 397.
The state's petition was sent to all counsel of record in this matter.
Subsequent to this hearing, the acquittee, through counsel, was provided with a copy of the board's report to the court.
At a hearing before this Court, the acquittee cross-examined Dr. Fox, the only witness who testified at the board hearing. Pursuant to § 17a-593(e), the acquittee may, and did in fact, obtain separate examinations, which were performed by two psychiatrists. The Court was provided with the psychiatrists' written reports and their testimony at trial.
"[U]nlike decisions rendered by other administrative agencies, the report to which the acquittee objects is not subject to deferential review by the trial court." State v. Harris, supra, 277 Conn. 398. As was the case in Harris, "the acquittee was free to rebut the board's recommendation in the report by calling witnesses and by presenting his own evidence." Id. The acquittee did rebut the recommendations by the board and provided his own evidence by way of the separate psychiatric examinations. The acquittee also called three psychiatrists, who testified on his behalf.
This Court can find no great difference in the procedural safeguards provided to the acquittee in Harris and the acquittee in the present case. Therefore, the Court finds that admission of the report does not violate the acquittee's procedural due process rights.
The acquittee also claims that he has a common-law right to cross-examination that is violated by admission of the report. The principles of due process require that a party have "an effective opportunity to defend by confronting any adverse witnesses . . ." (Citation omitted; internal quotation marks omitted.) Id., 396. As noted above, the acquittee had the opportunity to take part in the board's hearing and present his own witnesses at that time. In addition, at the hearing before this Court, the acquittee cross-examined Dr. Fox, the sole witness at the board's hearing. Therefore, the Court finds that the acquittee's common-law right to cross-examination has not been violated.
Finally, the acquittee claims that admission of the report violates his substantive due process rights for the following reasons: (1) the board applied the wrong dangerousness standard; (2) the board used the wrong psychiatric disability legal standard; and (3) the board cannot properly apply a clear and convincing evidence burden if its primary mandate is the protection of society.
"It is axiomatic that the due process clause not only guarantees fair procedures in any governmental deprivation of life, liberty, or property, but also encompasses a substantive sphere . . . barring certain government actions regardless of the fairness of the procedures used to implement them . . . This basic protection embodies the democratic principle that the good sense of mankind has at last settled down to this: that [due process was] intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice . . . "[S]ubstantive due process has been held to protect against only the most arbitrary and conscience shocking governmental intrusions into the personal realm that our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society." (Citations omitted, internal quotation marks omitted.) ATC Partnership v. Windham, 251 Conn. 597, 605-06, 741 A.2d 305, cert. denied, 530 U.S. 1214, 120 S.Ct 2217, 147 L.Ed.2d 249 (2000).
"A salient example of such abuse of power may be found in the very case in which the standard was first enunciated. In Rochin v. California, [ 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)], the United States Supreme Court held that the forced pumping of a suspect's stomach to retrieve evidence shocked the conscience. As the court described it, [i]llegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation . . ." (Citation omitted; internal quotation marks omitted.) ATC Partnership v. Windham, supra, 251 Conn. 608.
The acquittee has failed to show how the admission of a report, to which the Court need not provide any deference; see State v. Harris, supra, 277 Conn. 398; and which can be attacked and rebutted in numerous ways, rises to the level of a violation of the acquittee's substantive due process rights. Therefore, the Court finds that the admission of the report does not violate the acquittee's substantive due process rights. Moreover, it is ironic that in this case, it is the report itself, and the information upon which the board relied, that has convinced this Court that the State is unable to meet its burden of proof for its petition for order of continued commitment. The report helps the acquittee, rather than hurting him.
B. Motion to Dismiss
The acquittee's motion to dismiss is mooted by the dismissal of the State's petition for continued commitment, which is discussed in the next section.
C. Petition for Continued Commitment
Pursuant to § 17a-593(c), the State must "show by clear and convincing evidence that the acquittee is currently mentally ill and dangerous to himself or herself or others or gravely disabled." State v. Metz, supra, 230 Conn. 425. "When making its decision, 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 findings as to the mental condition of the acquittee . . ." (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Harris, supra, 277 Conn. 384. Finally, the standard of dangerousness to be applied by the courts was clarified by our Supreme Court in Harris. The court held the standard is that the acquittee must pose a "substantial risk" of physical injury to himself or others. See id., 389. In this case, the State was unable to produce any evidence or testimony that the acquittee currently is a substantial danger to himself or others.
Based on the evidence presented to the board, it determined that the acquittee has the diagnoses of alcohol abuse in a controlled environment, heroin abuse in a controlled environment, cannabis abuse in a controlled environment and a personality disorder, not otherwise specified, with paranoid, narcissistic and antisocial traits. (See board's report, p. 4.) Moreover, the board stated that although the acquittee has made some progress, "the core issues around [the acquittee's] judgment and insight related to his psychiatric illness and substance abuse history remain unchanged. In addition to the crime for which he was acquitted, [the acquittee] has demonstrated a pattern of inappropriate contact with female staff while hospitalized." (Board's report, p. 4.) The board recommends that the acquittee be recommitted for a period not to exceed four years inasmuch as it believes 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." (Board's report, pp. 4-5.) Although the board is probably correct that the acquittee is a danger to himself or others, this finding falls short of the standard of proof required for continued commitment.
At trial, Dr. Fox testified that the acquittee currently has an Axis II diagnosis of a personality disorder, not otherwise specified, with paranoid, narcissistic and antisocial traits and is diagnosed with alcohol abuse in a controlled environment, heroin abuse in a controlled environment and cannabis abuse in a controlled environment. (See trial testimony, February 9, 2006, p. 22.) Dr. Fox explained that the diagnosis of alcohol and drug abuse in a controlled environment means that "presently his access to those substances is limited by his hospitalization, so [it is] difficult to assess how active they are." (Trial testimony. February 9, 2006, p. 22, ln. 8-10.) Although the acquittee was prescribed neuroleptic medications at one time, he has not been prescribed any psychotropic medications for the past few years because the treatment team determined that the acquittee's symptoms do not rise to the level of requiring medication and the acquittee is not interested in being prescribed such medication. (See trial testimony, February 9, 2006, p. 11.) Dr. Fox also believes that the acquittee does not need to take medication. (See trial testimony, February 9, 2006, p. 29, ln. 8-9.) In addition, the acquittee has been "generally cooperative, participatory, [and] not actively or openly resistive to treatment." (Trial testimony, February 9, 2006, p. 12.)
In its report, the board expressed its concern with the acquittee's "questionable and inappropriate contact with female staff." (Board's report, p. 4.) While he was confined at the Norwich Hospital approximately fifteen years ago, the acquittee had a physical relationship with a female staff member. (See trial testimony, February 9, 2006, pp. 17-18.) In addition, in the past year, there were two incidents that concerned the hospital staff. The acquittee wrote two notes to a female employee of the Valley View Cafe, which is the hospital's eating establishment that is open to the public and to patients, expressing his interest in her and wondering if she was interested in him and whether there was a possibility of "an encounter." (Trial testimony, February 9, 2006, pp. 18-19.) In addition, the staff was concerned about the acquittee's behavior with the hospital's yoga instructor, in whose class the acquittee was enrolled. Although the instructor did not perceive there to be a problem, the staff thought the acquittee sat too close to the instructor, tried to monopolize her time, should not have been standing by her on the elevator and should not have waited for her to leave the building. (See trial testimony, February 9, 2006, pp. 20-21.) Dr. Fox testified that the physical relationship with the staff person was inappropriate because of the hospital regulations regarding staff and patient relationships, but that these other incidents on the surface were not inappropriate. Instead, they were problematic because of the women's reactions and because these advances were "unrequited and not reciprocated." (Trial testimony, February 9, 2006, p. 25.) The four psychiatrists who testified before the Court came to similar conclusions about whether the acquittee posed a significant risk of danger to himself or others. On direct, Dr. Fox testified that he believed the acquittee would pose such a danger; (trial testimony, February 9, 2006, p. 30, ln. 19-24); but, on cross-examination, which occurred subsequent to the Harris decision, the doctor indicated that he did not believe the acquittee posed a risk of imminent physical injury or a substantial risk to himself or others. (See trial testimony, February 9, 2006, p. 8.) Dr. Fox attributed this change in his opinion to his belief that the Harris case provided a clearer definition of "danger" as it is used in the statute. (See trial testimony, March 16, 2006, p. 8.) The acquittee's witnesses, Dr. Zeman, Dr. Hakstein and Dr. Felber, all testified that the acquittee did not currently pose a danger to himself or others. Despite the board's assertion in its report that the acquittee is a danger, the Court is persuaded by the testimony of the four psychiatrists.
As noted above, the risk that an acquittee must pose in order to justify his recommitment is a substantial risk of injury to himself or others. See State v. Harris, supra, 277 Conn. 389. Although this is the standard, even if the board had found the acquittee to be an "imminent" risk of harm to himself or others, the Supreme Court in Harris determined that "it [was] difficult to perceive any meaningful difference between the standards." Id. The court reasoned that "[c]ertainly, if the board had believed that the acquittee's release would lead to a risk of [imminent] physical injury . . . it must have believed that the risk of harm was substantial." Id. In the present case, there is no support in the board's report for a finding of substantial or imminent danger. Moreover, none of the psychiatrists were able to testify that the acquittee would be a substantial or imminent danger to himself or others if he were let out of confinement.
Based upon the evidence adduced at trial, it is the finding of this Court that the State has not met its burden of proving, by clear and convincing evidence, that the acquittee is mentally ill and a substantial danger to himself or others or is gravely disabled. The State also failed to prove that the acquittee is an imminent danger to himself or others.
IV. CONCLUSION For the above-enumerated reasons, the acquittee's motions to dismiss and strike are hereby denied. In addition, the State's petition for order of continued commitment is denied and the acquittee shall remain involuntarily confined until August 11, 2006, in accordance with his agreement. The Court is confident that the staff at Dutcher Hall will take appropriate steps between now and August 11, 2006, to help the acquittee to safely transition to the community.