Opinion
No. CR-10-0074098
August 3, 2006
MEMORANDUM OF DECISION
I FACTUAL AND PROCEDURAL BACKGROUND
Effective July 1, 1985, Charles McCullough was placed under the jurisdiction of the Psychiatric Security Review Board (PSRB) pursuant to Connecticut General Statutes Section 17a-602. Previously, on May 15, 1975, the New London Judicial District Court committed Mr. McCullough for a period not to exceed twenty years after being acquitted by reason of mental disease or defect of the charge of Assault 1st.
Mr. McCullough was originally housed at Norwich State Hospital from 1975 until the hospital's closure, some time in 1992. In February of 1992, the acquittee was moved from Norwich to the Whiting Maximum Security Facility.
On December 4, 1994, the state filed a motion for continued commitment. In April of 1995, the PSRB submitted its report to the Court and stated that Mr. McCullough was both schizophrenic and a substance abuser. He refused to cooperate with his psychiatric treatment and, due to his noncompliance, had forced medications. The Board reported that the acquittee was assaultive when not on medication and a danger to himself and others. The Board concluded that Mr. McCullough should remain under its supervision.
On May 5, 1995, the Court (Purtill, J.) held a hearing on the acquittee's recommitment and issued a decision remanding the acquittee to the custody of the PSRB for an additional ten-year period.
In December of 2004, the state filed a petition for an order of continued confinement; the acquittee's maximum commitment date was due to expire on May 9, 2005.
In March of 2005, the PSRB submitted its report to the Court, detailing Mr. McCullough's status. The report concluded that the acquittee denied that he had a mental illness, denied that substance abuse negatively affected him, and showed very limited insight into these issues. The acquittee wanted to stop his medications, despite the history of decompensation which had ensued in the past when his medications had been discontinued.
In the report, the Board's psychiatrist, Dr. Fox, recommended a gradual community reintegration program, but until the plan was in place, the acquittee was to remain with the PSRB. The Board recommended a continued commitment not to exceed three years.
On April 29, 2005, the parties filed a Motion for Extension of Board Commitment by agreement pending hearing. The acquittee's attorney was having him independently evaluated. The Court (Clifford, J.) granted the motion on the papers on that date.
On September 28, 2005, a second Motion for Extension of Board Commitment of the acquittee was filed by agreement to run from 10/9/05 through 4/9/06, pending a hearing on the matter. As requested by the parties, that motion was granted on the papers by the Court (Handy, J.) on 9/29/06.
On April 7, 2006, this matter was before the Court on the state's Motion for Extension of Continued Commitment of the acquittee, Charles McCullough. On that date, all parties were present, represented by counsel and had a full opportunity to be heard. At the conclusion of the proceedings on that date, the parties orally stipulated to the continued commitment of Charles McCullough to the PSRB for one month, until May 9, 2006.
The acquittee had filed a number of motions for this Court's consideration. On November 28, 2005, the acquittee filed a Motion to Dismiss the state's petition and a Motion to Strike the PSRB's Report to Court, dated March 14, 2005. Both motions were accompanied by a Memorandum of Law. On December 5, 2005, the acquittee filed a Supplemental Memorandum in Support of both the Motion to Dismiss and the Motion to Strike, advising this Court of two matters on appeal to the Connecticut Supreme Court: State v. Metz, 92 Conn.App. 206 (November 1, 2005), on a Petition for Certification; and State v. Harris, S.C. 17326, which was awaiting a decision from oral argument on October 25, 2005.
On January 26, 2006, the PSRB filed a Memorandum of Law in opposition to the Acquittee's Motion to Strike. The PSRB then filed a Supplemental Memorandum on March 14, 2006, attaching the decision rendered by the Supreme Court in the State v. Harris matter, reported at 277 Conn. 378 (2006). The acquittee then filed a Supplemental Memorandum regarding its Motion to Strike on April 7, 2006. The acquittee next filed a Post-Trial Brief with this Court on April 17, 2006. In response to the acquittee's Supplemental Memorandum on the Motion to Strike, the PSRB filed a Memorandum in Opposition on May 1, 2006. On April 28, 2006, the parties stipulated to a continuation of the acquittee's commitment until August 7, 2006.
Transcripts from the recommitment hearing were requested by the acquittee. Upon the receipt of same, the acquittee filed a Supplemental Post-Trial Brief on May 18, 2006.
II. DISCUSSION
The Court will first address the acquittee's motions and then address the substantive issue of recommitment.
A. Acquittee's Motion to Strike
In his original Motion to Strike, the acquittee moved this Court to strike the Board's report dated March 14, 2005, on the following three grounds. First, the report is hearsay and does not satisfy any hearsay exceptions, including the public record or business record exceptions, thus rendering the report inadmissible. Second, the admission of the report violates the acquittee's procedural due process rights of confrontation and fundamental fairness. Third, the report is so untrustworthy and unreliable that its admission at the continued commitment hearing shocks the conscience in violation of the acquittee's right to substantive due process.
While this matter was pending, the Connecticut Supreme Court rendered a decision in State v. Harris, 277 Conn. 378, 890 A.2d 559 (2006), affirming the trial court's decision to deny the acquittee's motion to strike the Board's report recommending the continuation of acquittee Harris' commitment. On appeal, the acquittee Harris had argued the following: "(1) the report was irrelevant and unfairly prejudicial; (2) its admission violated the acquittee's rights under the confrontation clause of the United States constitution; and (3) its admission violated the acquittee's right to due process." Id., 380.
The Supreme Court was not persuaded by these arguments. The Supreme Court held that the report was relevant and, thus, admissible as it "provided an expert assessment of the acquittee's mental state." Id., 390. Even if the acquittee felt that the report was biased in favor of recommitment, that argument went to the weight of the report, not to its admissibility. See Id. Furthermore, the Court ruled that the claimed prejudicial effect of the Board's report did not outweigh its probative value. See Id., 391. In regard to the acquittee's constitutional claims, the Court determined that the Sixth Amendment right to confrontation did not apply to continued commitment proceedings because they were not criminal prosecutions and that the admission of the report did not violate the acquittee's due process rights. See Id., 394.
Subsequent to the release of the Harris decision, the acquittee McCullough orally amended his motion to strike at the hearing before this Court on April 7, 2006, and filed a supplemental memorandum of law addressing the effect of the Harris decision. In his oral amendment, the acquittee requested that the Court either strike the whole report, or, in the alternative, strike the conclusions, opinions and recommendations of the Board contained in the last two paragraphs of the report. The state indicated that it had no objection to the Court striking that portion of the Board's report since what was contained in the recommendation was a determination for the Court as the trier of fact. In his supplemental memorandum, the acquittee contends that "[m]ost of the arguments made by [him] against the admission of the Board's [r]eport in whole or in part were not addressed in Harris. (Acquittee's Supplemental Memorandum, dated April 7, 2006, p. 2.) Specifically, the acquittee claims that the grounds for his Motion to Strike are materially different than those advanced in Harris inasmuch as the acquittee McCullough argues the following: (1) the [report] constitutes an out-of-court, expert opinion/legal conclusion on the ultimate issue in [a] continued commitment hearing, and is therefore hearsay which does not qualify as an exception to the hearsay rule; (2) the [report] violates the acquittee's right to procedural due process, particularly his common law and constitutional procedural due process right of cross examination (as distinguished from a [s]ixth [a]mendment right to confrontation); (3) the [b]oard in this case was improperly constituted and therefore its [r]eport is unreliable within the meaning of the hearsay rule; and (4) the [report] violates the acquittee's right to substantive due process." (Emphasis omitted.) (Acquittee's Supplemental Memorandum, dated April 7, 2006, p. 6.) The Court notes that the arguments advanced by the acquittee in his supplemental memorandum are extensions of those arguments made in his motion to strike and will address them in turn.
That portion of the report states: "Based on the preceding facts, the [b]oard concludes the following based on clear and convincing evidence: Charles McCullough 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 . . . The [b]oard, pursuant to . . . General Statutes Section 17a-593, respectfully recommends to the [c]ourt that it grant Senior Assistant State's Attorney Lawrence J. Tytla's [p]etition for an [o]rder of [c]ontinued [c]ommitment of the [a]cquittee, Charles McCullough for a period not to exceed three years." (Emphasis omitted.) (Board's report dated March 14, 2005, p. 4.)
The statutes governing a request for continued commitment of an acquittee are codified in General Statutes Section 17a-593(c)-(g). Under these provisions, at least 135 days before the acquittee's commitment expires, the state's attorney may petition the Court to continue the acquittee's commitment "[i]f reasonable cause exists to believe that the acquittee remains a person with psychiatric disabilities or mentally retarded to the extent that his discharge . . . would constitute a danger to himself or others." General Statutes Section 17a-593(c). After the Court forwards such a petition to the Board, "[t]he Board shall, within ninety days of its receipt of the . . . 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." General Statutes Section 17a-593(d). "Within ten days of . . . receipt of the board's report filed . . . either the state's attorney or counsel for the acquittee may file notice of intent to perform a separate examination of the acquittee. An examination conducted on behalf of the acquittee may be performed by a psychiatrist or psychologist of the acquittee's own choice and shall be performed at the expense of the acquittee unless he is indigent. If the acquittee is indigent, the court shall provide him with the services of a psychiatrist or psychologist to perform the examination at the expense of the state. Any such separate examination report shall be filed with the court within thirty days of the notice of intent to perform the examination." General Statutes Section 17a-593(e). "After receipt of the board's report and any separate examination reports, the court shall promptly commence a hearing on the . . . petition for continued commitment." General Statutes Section 17a-593(f). "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 `finding as to the mental condition of the acquittee . . .'" State v. Harris, supra, 277 Conn. 384, quoting General Statutes Section 17a-593(g). In a recommitment hearing, the state bears the burden of showing "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, 230 Conn. 400, 425, 645 A.2d 965 (1994).
Regarding the acquittee's argument that the report constitutes hearsay and does not fall within one of the hearsay exceptions, the Court does not agree. "Pursuant to Section 17a-593(d) . . . the court must seek the recommendation of the . . . board . . ." Id., 420; and the report must specifically "[s]et forth [the board's] findings and conclusions as to whether the acquittee is a person who should be discharged." General Statutes Section 17a-593(d); see also State v. Dickinson, Superior Court, Judicial District of Tolland, Docket No. CR-84-023695 (July 7, 2006, Kaplan, J.). It is only after receipt of the Board's report and any other examination reports that the Court will commence a hearing at which it will be the fact finder regarding whether the acquittee should be discharged. General Statutes Section 17a-593(f). See also State v. Harris, supra, 277 Conn. 384. Furthermore, "under 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).
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), as cited in State v. Dickinson, supra, Superior Court, Docket No. CR-84-023695.
The Court finds that the report is admissible. As evidenced above, the Board is statutorily mandated to provide the Court with a report whenever the state files a petition for an order of continued commitment. By statute, that report must contain the Board's findings and conclusions as to whether a person should be discharged from its custody and supervision. In addition, the Board has been identified as being in a better position than the courts to monitor the acquittees' commitment because of its "general and specific familiarity" with the acquittees. State v. Long, supra, 268 Conn. 536. "[T]he 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." State v. Dickinson, supra, Superior Court, Docket No. CR-84-023695. Therefore, the Court finds that the report in its entirety is admissible.
The Court will not address the acquittee's arguments that the report does not fulfill the public records or business records exception to the hearsay rule based on the Court's finding that the report is statutorily mandated.
In the acquittee's Motion to Strike, he claims admission of the report would violate his procedural due process right of fundamental fairness. The acquittee invokes his rights under Article First, Section 8, of the Constitution of Connecticut and the Fourteenth Amendment to the United States Constitution. Thereafter, in his Supplemental Memorandum filed on April 7, 2006, the acquittee claims that such admission violates his procedural due process rights, specifically his common-law and constitutional due process rights of cross examination.
On appeal, the acquittee in Harris claimed that admission of the report violated his right to confrontation, as protected by the Sixth Amendment, and his procedural due process rights under Article First, Section 8, of the Constitution of Connecticut. (See State v. Harris, Conn. Supreme Court Records Briefs, October Term, 2005, Appellant's Brief, pp. 17 and 27.) Our Supreme Court did not agree and instead held that the acquittee's due process rights were not violated by admission of the Board's report since recommitment hearings are not criminal prosecutions, the Sixth Amendment right to confrontation did not apply. See State v. Harris, supra, 277 Conn. 394. Although the Supreme Court's resolution of acquittee Harris' due process claims is not binding on this Court to the extent that such an analysis is fact based; see State v. Long, supra, 268 Conn. 523; the Supreme Court's reasoning in Harris is 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 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." Matthews 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.
Again, as cited by Judge Kaplan in his recent decision, State v. Dickinson, supra, Superior Court, Docket No. CR-84-023695, "[t]he 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.
In this matter, the Court concludes, as did the Supreme Court in Harris, that both the acquittee and the government in the present matter have substantial interests. "[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. "[I]t 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; see also State v. Dickinson, supra, Superior Court, Docket No. CR-84-023695.
As to the second factor of "the risk of an erroneous deprivation [of the acquittee's liberty] through the procedures used"; (internal quotation marks omitted), State v. Harris, supra, 277 Conn. 397; this Court finds that the acquittee's due process rights are not violated by admission of the Board's report. On or about December 13, 2004, the state filed a petition for order of continued commitment. The acquittee does not claim that he was not provided with this notice. On February 4, 2005, the Board held a hearing to prepare its report to the Court. The acquittee appeared at this hearing with the representation of counsel and had the ability to present his own witnesses. See General Statutes Section 17a-595; see also State v. Harris, supra, 277 Conn. 397. At this hearing before the Board, the acquittee had the opportunity to and, in the present matter, did cross examine Dr. Fox, the only witness presented before the Board. (See Board's report dated March 14, 2005, [Board's report], p. 3.) Thereafter, the acquittee, through counsel, was provided with a copy of the Board's report. (See Board's report, p. 4.) 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 acquittee also cross examined Dr. Fox during his testimony at a hearing held on April 7, 2006, before this Court. Pursuant to Section 17a-593(e), the acquittee was provided with the opportunity to obtain a separate examination. The acquittee filed a notice of intent for a separate examination to be performed by Dr. Peter Zeman. (See Notice of Intention to Perform Separate Examination, dated April 8, 2005.) This independent evaluation was also discussed in the acquittee's written agreement to the extension of his commitment pending a hearing, which was filed with the Court on April 29, 2005. The Court has no knowledge of whether such an evaluation took place or if a report was generated from that evaluation. No information was presented to this Court for its consideration regarding any independent evaluation.
"[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; see State v. Dickinson, supra, Superior Court, Docket No. CR-84-023695. Similar to the circumstances in Harris, "the acquittee [in the present matter] was free to rebut the board's recommendation in the report by calling witnesses and by presenting his own evidence." State v. Harris, supra, 277 Conn. 398. The acquittee, through counsel, cross examined the state's witness, Dr. Fox, but did not present any of his own witnesses.
The procedural safeguards provided to the acquittee in the present case are quite similar to those provided to the acquittee in the Harris case. As noted above, the procedural safeguards provided in Harris were upheld by our Supreme Court. It is the finding of this Court that the acquittee's procedural due process rights have not been violated by the admission of the Board's report where the acquittee did not cross examine the individual Board members.
The acquittee also claims that he has a common-law right to cross examination, a right which is violated by admission of the report. Due process requires that a party have "an effective opportunity to defend by confronting any adverse witnesses . . ." (Internal quotation marks omitted.) Id., 396. As described above, the acquittee was statutorily permitted to participate in the Board's hearing, including through presentation of his own witnesses. In addition, the acquittee cross examined Dr. Fox at the hearing held before the Board and at the hearing held before this Court on April 7, 2006. Dr. Fox was the sole witness before the Board and the sole witness presented by the state at the hearing before this Court. In sum, it is the finding of this Court that admission of the report did not violate the acquittee's common-law right to cross examination.
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). See also State v. Dickinson, supra, Superior Court, Docket No. CR-84-023695.
"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.) ATC Partnership v. Windham, supra, 251 Conn. 608; State v. Dickinson, supra, Superior Court, Docket No. CR-84-023695.
The Supreme Court in Harris indicated that whether the Board determines an acquittee to be an imminent or a substantial risk of physical injury, "it is difficult to perceive any meaningful difference between the standards." State v. Harris, supra, 277 Conn. 389. Moreover, the conclusions and findings in the report are not provided any deference by the courts; see id., 398; and can be rebutted by the acquittee in numerous ways. Based on the foregoing, the Court finds that admission of the report does not violate the acquittee's substantive due process rights.
Accordingly, the acquittee's original Motion to Strike and his oral amendment to such motion, as articulated in his supplemental memorandum dated and filed on April 7, 2006, are denied.
B. Acquittee's Motion to Dismiss
On November 28, 2005, the acquittee filed a Motion to Dismiss the state's petition for continued commitment claiming that Section 17a-593(c) is unconstitutional in procedure and effect once an acquittee completes his maximum period of commitment based on the reasoning of Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553 (1977); State v. Metz, supra, 230 Conn. 400, and related cases. Specifically, the acquittee argued: (1) Section 17a-593(c) violates the acquittee's right to equal protection, as guaranteed by the Fourteenth Amendment of the United States Constitution, because acquittees are not provided with the same substantive and procedural protections provided to civil committees; and (2) Section 17a-593(c) violates the acquittee's due process rights under Article First, Section 8, of the Constitution of Connecticut.
The constitutionality of Section 17a-593(c) has been previously reviewed by the state's higher courts. In State v. Long, supra, 268 Conn. 516-17, the court held, inter alia, that "Section 17a-593(c), as applied to the [acquittee], provided him with judicial review sufficient to satisfy his state procedural due process rights [and] . . . his federal equal protection rights were not violated because a rational basis exists for the disparate treatment accorded an acquittee and a civilly committed inmate." With regard to the equal protection claim, the court determined that "the state legislature reasonably could have determined that disparate treatment of the classes of individuals was warranted because: (1) the board has general and specific familiarity with the acquittees and therefore is better equipped to regulate their commitment; and (2) the risk of erroneous commitment based on idiosyncratic behavior is far less for an acquittee and therefore the additional mandatory judicial review procedures provided for civilly committed inmates are unnecessary for acquittees." State v. Long, supra, 268 Conn. 533-34.
Moreover, the Supreme Court specifically narrowed the holding of State v. Metz, supra, 230 Conn. 400, ( Metz I) a case upon which the acquittee in the present case heavily relies. In Metz I, the court construed Section 17a-593 to "[impose] the same burden on the state at a hearing for the continued commitment of an acquittee beyond his current definite period of commitment as is imposed in a civil commitment hearing under Section 17a-593(c), namely, to 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, 230 Conn. 425. The Long court stated that the Metz court "did not address the issue of whether Section 17a-593(c) violated an acquittee's constitutional guarantees. Rather, Metz [I] was a statutory construction case concerning the burden of proof for recommitment that merely employed constitutional principles to aid in its analysis." State v. Long, supra, 268 Conn. 537 n. 38. The court concluded "that, although principles of equal protection require that the burdens of proof in continued commitment and civil commitment proceedings be identical, those same principles do not require that the procedures themselves be identical." State v. Harris, supra, 277 Conn. 387, citing State v. Long, supra, 268 Conn. 536-37.
Subsequently, in State v. Metz, 92 Conn.App. 206, 883 A.2d 1264, cert. denied, 276 Conn. 934, 890 A.2d 572 (2005), ( Metz II), the trial court had reserved three questions of law for the advice of the Connecticut Supreme Court, noting in the reservation that "certain cases pending before the Supreme Court [including State v. Long] would have a direct bearing on the legal issues in [ Metz II]." State v. Metz, supra, 92 Conn.App. 209. The Supreme Court then transferred the reservation to the Appellate Court. Id.
The three reserved questions sought the Appellate Court's determination of whether Section 17a-593(c) violated the principles of equal protection as guaranteed by the Connecticut and United States Constitutions and whether the statute violated the acquittee's procedural due process rights under the Connecticut Constitution. See Id., 211. In his appellate brief, the acquittee Metz provided a direct comparison between the statutory schemes committing acquittees and civil committees. The Court notes that the different substantive standards, procedural processes, discharge and/or recommitment procedures, and "other significant differences" asserted by the acquittee Metz in his appellate brief are almost identical to those differences argued by the acquittee in the present case. (See State v. Metz, Conn. Appellate Court Records Briefs, September Term, 2005, Appellee's Brief, pp. 21-30; see also acquittee's motion to dismiss filed November 28, 2005, pp. 1-11.) In attempting to distinguish the holding in Long, the acquittee argued that the court in Long "did not determine whether the respective statutory schemes in their entirety, especially as they impact the liberty interests of acquittees, are rational means chosen by the Legislature to achieve the asserted goals articulated by the court in Long. Long's equal protection holding cannot be generalized to address the wider range of statutory disparities challenged by Thomas Metz." ( State v. Metz, Conn. Appellate Court Records Briefs, September Term, 2005, Appellee's Brief pp. 31-32). Despite these arguments and the extensive description of the differences between the civil and acquittee statutory commitment schemes, the Appellate Court held, inter alia, that State v. Long governed the case before it; see State v. Metz, supra, 92 Conn.App. 209; and that Section 17a-593(c) did not violate the equal protection rights guaranteed under the state and federal constitutions. State v. Metz, supra, 92 Conn.App. 211-12. The acquittee sought to appeal this decision to our Supreme Court, but the petition for certification to appeal was denied. See State v. Metz, 276 Conn. 934, 890 A.2d 572 (2005).
Finally, in State v. McClellan, Superior Court, Judicial District of New London, Docket No. CR-10-205975 (March 15, 2002, Handy, J.) ( 31 Conn. L. Rptr. 561), this Court considered arguments similar to those advanced by the acquittee in the present case. In that case, the acquittee moved to dismiss the state's petition for recommitment because the acquittee did "not receive the same or substantially the same procedural due process protections as any other individual subject to involuntary civil commitment" and the acquittee did "not receive the same or substantially similar rights and remedies as others involuntarily committed." Id., 564. In finding that the acquittee had not met his burden of proof to show the unconstitutionality of the recommitment statute, this Court noted that "the acquittee [was] not entitled to the same panoply of rights and process provided in the civil commitment process . . . [T]his is not what the equal protection clause envisioned." Id., citing Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).
Generally, "in any constitutional challenge to the validity of a statutory scheme, the [statutory scheme] is presumed constitutional . . . and [t]he burden is on the [party] attacking the legislative arrangement to negative every conceivable basis which might support it . . ." (Citation omitted; internal quotation marks omitted.) State v. Long, supra, 268 Conn. 534. The Court finds that the acquittee has not met his burden of proving that Section 17a-593(c) is unconstitutional. Despite the acquittee's assertions, the courts in Long and Metz II have already spoken to the equal protection claims before this Court. As noted above, the myriad differences in the acquittee and civil commitment statutes were before the Appellate Court in Metz II and that court determined the statute to be constitutional under state and federal equal protection challenges.
The acquittee also argues that Section 17a-593(c) violates his procedural due process rights. Specifically, the acquittee claims that the statute improperly fails to require examinations by two impartial physicians selected by the court and that his rights to present a defense and cross examine witnesses are impaired by the Board's participation in the recommitment process.
As more fully articulated above in Section IIA, this Court finds that the Board's participation does not violate the acquittee's right to procedural due process. The acquittee was represented by counsel at the hearing before the Board and at the recommitment hearing before this Court. The acquittee cross examined Dr. Fox, who was the only witness before the Board and the state's only witness before this Court. The acquittee was provided with the opportunity to obtain separate psychiatric examinations. No such examination reports were provided to this Court and the acquittee did not call any witnesses on his behalf. Furthermore, the trial court does not defer to the Board's findings; see State v. Harris, supra, 277 Conn. 398; but, instead, it makes its own factual findings regarding the acquittee's mental condition. See Id., 384. It is the finding of this Court that the acquittee was provided with the opportunity to be heard . . . at a meaningful time and in a meaningful manner"; (internal quotation marks omitted) Id., 396; so as to conform with procedural due process requirements.
Accordingly, the acquittee's Motion to Dismiss is denied.
C. State's Petition for an Order of Continued Commitment
As noted previously, the state filed a Petition for an Order of Continued Commitment in December of 2004. That petition was filed pursuant to Connecticut General Statutes Section 17a-593, at least 135 days prior to the expiration of Mr. McCullough's current commitment. A full hearing was held on this matter on April 7, 2006.
During that hearing, the Court heard testimony from the state's witness, Dr. Patrick Fox, a psychiatrist. No other witnesses were called by either the state or the acquittee. Dr. Fox testified that Mr. McCullough is diagnosed as schizophrenic undifferentiated coupled with polysubstance dependence, antisocial disorder and medical conditions which include hypertension, diabetes and chronic pulmonary disease. His psychiatric condition includes manifestations which continue to present such as a slowing of cognitive processes, prompting needed to complete tasks and laughing at himself. Currently, he is prescribed the antipsychotic risperidone once per day to help improve his compliance. He participates in group therapy, Alcoholics Anonymous and health groups on a weekly basis.
A detailed chronology of Mr. McCullough's placement shows that he was admitted to Norwich State Hospital commencing in October of 1975, after being acquitted on the grounds of mental disease under then Connecticut General Statutes Section 53a-47. For limited periods of time during his commitment at Norwich State Hospital, the acquittee had limited access to the community, including some period of time in the hospital's halfway house program in 1978. At least between 1980 through 1983, Mr. McCullough had regular home visits with his family during the summer, at Thanksgiving and Christmas. At various times throughout the early 1980s, the hospital tried to motivate the acquittee to transition to a partial hospitalization program and, each time, Mr. McCullough resisted and was uncooperative.
In 1987, a conditional release was recommended by the hospital, and the Board conditionally released Mr. McCullough to the community in June of 1987. In September of 1987, he was taken back into the custody of the Board due to a criminal arrest, and his conditional release was terminated. During the release, it appears that he was in a community cooperative apartment program in Groton, returning to Norwich State Hospital every two weeks for a psychiatric assessment. Mr. McCullough was granted some temporary leaves after the termination of his conditional release to spend some holidays with his family. In August of 1988, temporary leave privileges were terminated; those privileges were reinstated in February of 1989 and then suspended again in April of 1989 based on the acquittee's use of illegal substances.
In reviewing the reports provided to the Court by the acquittee, it appears that there was never a time that the acquittee was not on antipsychotic medication while in the custody of the Board. (See Post-Trial Brief, Section D.)
Mr. McCullough has a history of noncompliance with his medications even while in the custody of the Board. This occurred on several occasions between 1994 to 1996 and again in 2005, when he decided his medications were not working. At that time, a conservator had to be appointed through the probate court to administer the acquittee's medications; he had refused to take them. Once the forced medications began again, it took almost four months for Mr. McCullough's behavior to improve and thus his privileges to return to where they were before he stopped taking the medications. Dr. Fox testified that the acquittee does not believe he has a psychiatric disability and would not comply with medication on his own. From Dr. Fox's work with Mr. McCullough, the doctor believes that the acquittee has no insight into his psychiatric illness and feels that the only problem he has is a medical one.
As to the acquittee's substance abuse, Dr. Fox felt that he was at great risk for using illegal substances again. Mr. McCullough even told Dr. Fox that if he were out in the community, if he decided to use illegal drugs, "it would be his own choice." Mr. McCullough asserted that if he was discharged from the PSRB, my life is "my business"; he did not need help as he was sixty years old and could treat himself.
Dr. Fox concluded that Mr. McCullough has made progress while at Whiting. He has less hesitancy with mental thoughts, his memory has improved, his thinking is "a bit slow, but not bad," and recently, as long as compliant with his medication, Mr. McCullough has had no overt psychiatric symptoms except some elevated animation. Despite this progress, however, Dr. Fox still opined that the acquittee has a psychiatric disability and, if discharged from the Board, he would have no regimentation as to his treatment and medications. Under those circumstances and without proper monitoring, he would pose a danger to himself and others. Dr. Fox testified that there is a high probability that he would stop his medication and his mental state would deteriorate within weeks, coupled with a contemporaneous increase in threatening and violent behavior. Dr. Fox felt that the least restrictive placement for Mr. McCullough was the Ducher Unit at Whiting with an eventual community transition when there is clinical stability with community therapeutic resources and housing in place. Dr. Fox estimated that this would be about a two- to three-year process.
As discussed earlier, Connecticut General Statutes Section 17a-593(c) et seq. requires the state on a petition for recommitment to establish for the reviewing court that the acquittee has a psychiatric disability which continues to make him a danger to himself and/or others. As set out in Payne v. Fairfield Hills Hospital, 215 Conn. 675 (1990), "the purpose of commitment following an insanity acquittal . . . 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 and is no longer dangerous." See also State v. Jacob, 69 Conn.App. 666 (2002). The issue of "dangerousness" has been discussed by our court in State v. Putnoki, 200 Conn. 208 (1986), which states as to this issue, where the rights and needs of a defendant must be balanced against the security interests of society, a "weighing" regarding that individual's release rests with the trial court.
The standard which must be met in a recommitment petition was set out in State v. Metz, 230 Conn. 400 (1994). Once an acquittee's definite term of commitment has expired, the state has the same burden of proof in seeking to recommit the acquittee that it would have in civil commitment proceedings. This definite term of commitment is a "reasonably identified point of demarcation beyond which the presumption of dangerousness initially accompanying an acquittee does not continue." Id. At 425. "[A]lthough the principles of equal protection require that the burden of proof in continued commitment and civil commitment proceedings be identical, those same principles do not require that the procedures themselves be identical." State v. Long, 268 Conn. 508, 536 (2004). Consequently, the state must prove by clear and convincing evidence that Mr. McCullough is both mentally ill and a danger to himself or to others.
The acquittee argues in his Post-Trial Brief that the State v. Harris "conclusion that the dangerousness standards for civil and criminal commitment are essentially the same has a major impact on this case." (Post-Trial Brief, p. 3.) The acquittee argues that the state must now prove by clear and convincing evidence that the substantial nature of the danger posed by Mr. McCullough is imminent in nature. This Court does not agree with the acquittee's analysis of Harris, despite the Court's agreement with the acquittee's claim that "the complexity of the issues and the inherent susceptibility of the subject matter [lend itself] to great confusion." (Post-Trial Brief, p. 8.)
As previously analyzed in Sections IIA and B of the Memorandum, in Harris, there was much discussion about which definition of "dangerousness" should apply in a recommitment hearing. The acquittee argued that since the civil "clear and convincing" burden of proof applied to continued commitment proceedings, the civil definition of dangerousness should apply. The state argued that there was no legally significant difference between the definition of dangerousness employed in Board and civil commitment hearings. Our Supreme Court agreed with the state's analysis and held that as to the Board standard (the risk of imminent physical injury to others or self, involving the risk of loss or destruction of property of others) and as to the civil standard (substantial risk that physical harm will be inflicted on an individual upon his or her person or upon another person), "it is difficult to see any meaningful difference between the standards." Harris, supra, at 388-89.
In sum then, the trial court must apply the correct "clear and convincing standard of proof" to the case as a whole to determine whether or not the acquittee is both mentally ill and a danger to himself or to others, whether or not that danger is defined as substantial or imminent. This is, in this Court's opinion, "engag[ing] in the appropriate analysis" as the acquittee implores this Court to do. (Post-Trial Brief, p. 10.)
Applying the Harris analysis to the instant case, this Court finds that the acquittee Charles McCullough is mentally ill. He is a diagnosed schizophrenic with polysubstance abuse and antisocial disorder. To control these psychoses, the acquittee has been constantly administered some form of antipsychotic medication since 1975 and the initial court finding in this matter. When he stops taking this medication or refuses to take the medication, Mr. McCullough decompensates and his threatening and violent behavior becomes more exacerbated. When not on medication, Mr. McCullough has chosen to self-medicate through the use of illegal drugs.
This Court finds that the acquittee Charles McCullough is a danger to himself and others. Mr. McCullough has not had in the past and currently does not have insight into his mental illness. The acquittee does not think that he is mentally ill; he thinks he is medically ill only. It is this Court's opinion that if the acquittee is discharged, Mr. McCullough would not take his medication and would most likely use illegal substances, causing his mental state to deteriorate to threatening and/or violent behavior, which would constitute a threat to himself and/or others.
Accordingly, this Court grants the state's Motion for Continued Commitment and extends the acquittee's commitment for a period not to exceed two years to May 9, 2008. This Court further orders the PSRB to complete a plan of community transition for the acquittee to be implemented during this two-year period to include housing and community services such as health and therapeutic care. CT Page 14042