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State v. Ardizzone
STATE OF CONNECTICUT v.
VINCENT ARDIZZONE
(AC 46442)
Seeley, Westbrook and Palmer, Js.
Syllabus
The acquittee appealed from the judgment of the trial court denying his
application for discharge from the jurisdiction of the Psychiatric Security
Review Board pursuant to statute (§ 17a-593). He claimed, inter alia, that
the court improperly found that, if he were discharged, he would present
a danger to himself or others. Held:
The trial court properly determined that the acquittee was not a person
who should be discharged from the jurisdiction of the Psychiatric Security
Review Board, as the court’s finding that, if discharged, the acquittee would
constitute a danger to himself or others was not clearly erroneous.
The acquittee’s claim that § 17a-593, as applied to him, was unconstitutionally
vague was unavailing because he failed to meet his burden of proving beyond
a reasonable doubt that he had inadequate notice that noncompliance with
the rules of his treating hospital could result in a denial of his application
for discharge, as a reasonable person would have anticipated that the trial
court would consider his noncompliance with hospital rules when making
a determination of dangerousness pursuant to § 17a-593, and the acquittee
was aware of the rules and that the rules were intended to mitigate his risk
of dangerousness.
The acquittee failed to meet his burden of proving beyond a reasonable
doubt that he was the victim of arbitrary and discriminatory enforcement
of § 17a-593, as the trial court reached its dangerousness conclusion on the
basis of evidence in the record of the acquittee’s severe and repetitive
noncompliant behavior, which was associated with risk factors for decomposition and dangerousness.
Argued November 12, 2024—officially released January 21, 2025
Procedural History
Application for discharge from the jurisdiction of the
Psychiatric Security Review Board, brought to the Superior Court in the judicial district of Ansonia-Milford and
tried to the court, Dennis, J.; judgment denying the
application, from which the acquittee appealed to this
court. Affirmed.
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State v. Ardizzone
James B. Streeto, senior assistant public defender,
for the appellant (acquittee).
Meryl R. Gersz, assistant state’s attorney, with whom,
on the brief, was Margaret E. Kelley, state’s attorney,
for the appellee (state).
Opinion
WESTBROOK, J. The acquittee,1 Vincent Ardizzone,
appeals from the judgment of the trial court denying
his application for discharge from the jurisdiction of
the Psychiatric Security Review Board (board) in accordance with General Statutes § 17a-593 (a).2 On appeal,
the acquittee claims that (1) the court improperly found
that, if he were discharged, he would present a danger to
himself or others and (2) § 17a-593 is unconstitutionally
vague as applied to him.3 We disagree and, accordingly,
affirm the judgment of the trial court.
1
Pursuant to General Statutes § 17a-580 (1), the term ‘‘acquittee’’ refers
to a defendant who was found not guilty by reason of mental disease or
defect in a criminal proceeding pursuant to General Statutes § 53a-13.
2
General Statutes § 17a-593 (a) provides in relevant part: ‘‘The board . . .
may recommend to the court the discharge of the acquittee from custody
or the acquittee may apply directly to the court for discharge from custody. . . .’’
3
The acquittee additionally claims that the court improperly admitted the
board’s May 4, 2021 ‘‘Report to Court Re: Application for Discharge’’ as
evidence because it (1) contains inadmissible hearsay and (2) violates his
due process rights. In his appellate brief, the acquittee acknowledges that
State v. Harris, 277 Conn. 378, 394,
890 A.2d 559 (2006) (holding that board’s
report did not contain inadmissible hearsay, and its admission did not violate
due process), and State v. Warren, 100 Conn. App. 407, 424,
919 A.2d 465
(2007) (same), are binding on this court. He claims that ‘‘[t]his issue is being
raised for the sake of future review’’ by our Supreme Court. Because, ‘‘[a]s
an intermediate appellate court, we are bound by Supreme Court precedent
and are unable to modify it’’; (internal quotation marks omitted) State v.
Gonzalez, 214 Conn. App. 511, 522 n.10,
281 A.3d 501, cert. denied,
345
Conn. 967,
285 A.3d 736 (2022); and ‘‘this court’s policy dictates that one
panel should not, on its own, reverse the ruling of a previous panel’’; (internal
quotation marks omitted) State v. Dayvid J., 227 Conn. App. 755, 760,
322
A.3d 1126, cert. denied,
350 Conn. 919,
325 A.3d 218 (2024); the acquittee
cannot prevail on his evidentiary and constitutional claims concerning the
court’s alleged improper admission into evidence of the May 4, 2021 ‘‘Report
to Court Re: Application for Discharge.’’
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State v. Ardizzone
This court’s opinion in State v. Ardizzone, 215 Conn.
App. 854,
283 A.3d 982 (2022), cert. denied,
346 Conn.
905,
287 A.3d 1089 (2023), in which we affirmed the
trial court’s denial of a prior application for discharge
by the acquittee, and the present administrative record
set forth the following relevant facts and procedural
history. ‘‘The acquittee killed his father on November
29, 1991, as a result of a delusional belief that his father
was molesting his daughter. On January 12, 1993, the
acquittee was found not guilty of the charge of murder
by reason of mental disease or defect pursuant to General Statutes § 53a-13.4
‘‘On March 5, 1993, the acquittee was committed to
the jurisdiction of the board for a period not to exceed
thirty-five years. At the time of his commitment, the
acquittee had been diagnosed with schizophrenia, was
experiencing psychotic symptoms, was abusing alcohol, and was not complying with psychiatric treatment.
That term of commitment is due to expire on March
4, 2028.
‘‘At the beginning of his confinement, the acquittee
was committed to a maximum security facility and initially was reported to be progressing well. . . . On July
17, 1994, however, the acquittee was placed in four
point restraints after threatening staff. . . . [T]he
acquittee had stopped taking his medication, was experiencing symptoms of psychosis, and had engaged in
inappropriate behavior and sexual improprieties that
resulted in his transfer to a different facility unit. . . .
‘‘Over the next two years, the acquittee began to show
progress in his mental health treatment. He agreed to
4
‘‘General Statutes § 53a-13 provides in relevant part: ‘(a) 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. . . .’ ’’ State v. Ardizzone, supra,215 Conn. App. 856 n.2.
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State v. Ardizzone
resume his psychotropic medication and his participation in treatment groups was described as candid and
forthcoming. In light of that progress, the acquittee was
transferred to a less restrictive facility on August 20,
1998.
‘‘In a report issued approximately one year later, the
board found that the acquittee had exhibited a lack of
insight into his crime and his mental illness. The board
noted that the acquittee continued to minimize his crime
and believed that he had been cured of his mental illness
for at least four years.
‘‘In 2000 . . . the acquittee and his girlfriend impermissibly engaged in sexual activity in a visitor’s room
at the hospital facility . . . [and] the girlfriend [later]
reported that the acquittee had made harassing telephone calls to her. Thereafter, the acquittee’s privilege
level was reduced due to an increased risk of his leaving
the facility without permission.
‘‘In January, 2001, the facility reported to the board
that the acquittee had displayed difficulty adhering to
rules and regulations of the facility and had struggled
to be open and honest with his treatment team. . . .
[T]he acquittee’s privilege level was placed on hold after
[several incidents of inappropriate behavior of a sexual
nature] in violation of facility policy.
‘‘On December 14, 2001, the board held a hearing to
review the status of the acquittee, which was continued
to May 3, 2002. The testimony adduced at that hearing
indicated that the acquittee had displayed significant
difficulty in all treatment aspects . . . had sent a letter
intended for his daughter, in violation of both the facility’s mail policy and the acquittee’s divorce decree,
which forbade any contact between the acquittee and
his daughter . . . continued to violate the facility’s policies regarding sexual relationships and . . . demonstrated a consistent level of inappropriate behaviors
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State v. Ardizzone
that now required him to be transferred to a more secure
unit. [A] forensic psychiatrist for Connecticut Valley
Hospital, testified at the hearing that the acquittee had
displayed a level of character pathology and poor
impulse control, and that he presented a danger to vulnerable patients. The acquittee thereafter was transferred to a maximum security facility on December
14, 2001.
‘‘In the following years, the acquittee was transferred
between maximum security and less restrictive confinement on a near yearly cycle. Transfers to a less restrictive confinement were based on treatment progress
made during periods of maximum security confinement. Once the acquittee was returned to a less restrictive confinement, however, he resumed rule breaking
behaviors, including sexual impropriety, gambling, selling cigarettes to other patients, and assaultive behavior.
‘‘On June 22, 2006, the facility reported that the
acquittee was psychiatrically stable and taking prescribed medication. That report detailed the acquittee’s
goals for treatment . . . [and] concluded that,
although the acquittee was medically compliant and
had attained a good degree of clinical stability, his own
personality and characterological issues will need to
be monitored to assure that his behavior is conforming
to the unit rules. Six months later . . . the acquittee
filed an application in a self-represented capacity for
discharge from the jurisdiction of the board, but this
application ultimately was withdrawn.
‘‘Following a review hearing in August, 2007 . . . the
acquittee was granted temporary leave to visit with
friends and family twice per month. . . . At a status
review hearing held months later, the board granted
temporary leave for the acquittee to participate in day
treatment services in the community four days per
week.
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State v. Ardizzone
‘‘In March, 2011, the board held another hearing to
consider further temporary leave for the acquittee. At
this hearing, it was discovered that the acquittee had
engaged in numerous episodes of rule breaking behavior while attending day treatment in the community,
including sexual impropriety and accruing significant
credit card debt of approximately $14,000. The board
subsequently voted to transfer the acquittee to the Community Mental Health Center in New Haven for day
treatment service that provided more structure and a
higher level of supervision.
‘‘In December, 2011, the board denied the facility’s
request to allow the acquittee to have overnight visits
in the community based on testimony from medical
experts. Significantly, in the nine months since the previous status hearing, the acquittee had increased his
credit card debt to approximately $17,000. The board
thus concluded that financial stress was a risk factor
for psychiatric decompensation due to the acquittee’s
history of impulsive behavior, poor decision making,
and increased risk if transitioned to a setting with
decreased supervision and monitoring.
‘‘At a subsequent hearing on May 31, 2013, the
acquittee’s treatment providers testified that he was an
active member in his treatment groups and individual
therapy. The acquittee was reported to have made good
progress and had no deterioration of his mental state.
Although the acquittee had continued to engage in rule
violations, his providers testified that he had not
engaged in violent or threatening behaviors. In light of
his treatment progress, the acquittee was permitted to
transition to a residential program and reside overnight
in the community with continued supervision and treatment.
‘‘On August 21, 2015, the board held another review
hearing at which the board determined that, despite
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State v. Ardizzone
attending treatment sessions and remaining clinically
stable, the acquittee’s temporary leave had been suspended several times due to [rule violations]. Despite
these continued rule violations, the board allowed the
acquittee to remain in the community on temporary
leave, noting that he remained clinically stable and his
community providers were committed to providing
increased supervision and monitoring.
‘‘Following a review hearing in May, 2016, the board
terminated the acquittee’s temporary leave privileges
due to his violation of the terms of a prior decision of
the board. In so doing, the board noted that the acquittee
had transitioned from committing technical violations
of those terms to committing more serious violations
involving untruthfulness. . . .
‘‘On February 28, 2018 . . . the acquittee filed an
application with the court seeking discharge from the
jurisdiction of the board. In response, the board held
a hearing on April 20, 2018, to review the acquittee’s
status and to prepare a report to the court regarding
his application for discharge. At that hearing, the board
was presented with evidence of several instances of
rules violations by the acquittee following the May, 2016
termination of his temporary leave. Specifically . . .
the acquittee had attempted to pay another patient to
assault his treating psychiatrist, had attempted to purchase cigarettes against hospital rules, and had attempted
to make contact with his daughter. . . . [T]he acquittee
had informed [a medical service director] that he did
not want to live under any kind of rules that might
typically accompany temporary leave. . . . Following
the hearing, the board voted to recommend that the
court deny the acquittee’s application for discharge.
The trial court then held a hearing on that application,
which it subsequently denied on November 19, 2018.
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State v. Ardizzone
‘‘On October 4, 2019, the board held a hearing to
review the acquittee’s status and to consider the facility’s application for temporary leave. Testimony established that [although] the acquittee’s psychotic symptoms from the time of the offense that led to his arrest,
including paranoia and auditory hallucinations, were in
remission . . . the acquittee [nonetheless] had continued his rule breaking behavior and . . . it was unlikely
that [he] could comply with the rules set for him and
would more likely continue to challenge some rules.
. . . [T]he board denied the request for temporary
leave. . . .
‘‘On November 19, 2019, the acquittee filed in the
Superior Court another application for discharge from
the jurisdiction of the board. The board thereafter prepared and filed a [report to the court] on December 19,
2019. In that report, the board recommended that the
court deny the application . . . .’’ (Footnote in original;
internal quotation marks omitted.) State v. Ardizzone,
supra, 215 Conn. App. 856–63.
‘‘In January, 2020, the acquittee’s then current facility
provided an updated report to the board on his mental
condition, treatment progress, and current assessment
of his risk. Although the acquittee’s mental condition
and treatment remained clinically stable, he had been
diagnosed with stage IV prostate cancer and was undergoing treatment. In the risk assessment provided in that
report, the facility stated that the acquittee remained
clinically stable and free of psychotic symptoms on
his medication regimen and had collaborated to make
changes in his medications to address his impulsivity
and smoking. The facility also noted that the acquittee
recently had engaged in improper sexual activity with
another patient, but thereafter complied with facility
rules after that conduct was reported. The assessment
indicated that the acquittee’s insight, judgment, and
impulse control remain limited in circumstances [in
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State v. Ardizzone
which] his immediate desires overwhelm his ability to
delay gratification, and he continues to struggle with
following rules that he deems unnecessary to maintaining his psychiatric stability. The facility reported
that the acquittee remained open and willing to understanding his rule breaking behaviors in individual therapy, but ultimately declined to recommend any change
in the acquittee’s status to the board.
‘‘On March 3, 2020, the trial court held an evidentiary
hearing on the acquittee’s application for discharge
from the jurisdiction of the board, at which several
witnesses, including the acquittee, testified. In its subsequent memorandum of decision dated July 2, 2020, the
court found that the acquittee had failed to demonstrate
by a preponderance of the evidence that he is a person
who should be discharged . . . and, accordingly,
denied the application for discharge.’’ (Internal quotation marks omitted.) Id., 864–65. The acquittee subsequently appealed from the court’s denial of his November 19, 2019 application for discharge to this court and,
on October 18, 2022, we affirmed the judgment of the
trial court. Id., 865–66.
On January 26, 2021, while the acquittee’s prior
appeal to this court regarding his November 19, 2019
application for discharge was pending, the acquittee
filed another application for discharge in the Superior
Court, which is the subject of the present appeal. On
November 5, 2021, the board held a hearing to review
the acquittee’s status pursuant to General Statutes
§ 17a-585.5
On May 10, 2021, pursuant to § 17a-593 (d),6 the board
filed a ‘‘Report to Court Re: Application for Discharge’’
5
General Statutes § 17a-585 provides: ‘‘The board shall conduct a hearing
and review the status of the acquittee not less than once every two years.
At such hearing the board shall make a finding and act pursuant to [General
Statutes §] 17a-584.’’
6
General Statutes § 17a-593 (d) provides: ‘‘The court shall forward any
application for discharge received from the acquittee and any petition for
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State v. Ardizzone
(board’s report to the court), detailing the acquittee’s
history of evaluations, activities, and treatment. The
board’s report to the court set forth the following findings of fact: ‘‘Despite [the acquittee’s] improvement relative to psychotic symptoms and aggression, [the
acquittee] has consistently displayed a disregard for the
rules and protocols in his various treatment settings.
While some rule breaking behaviors have been technical
in nature, such as smoking cigarettes while escorted in
the community, other violations have involved planning
and deception, demonstrating a blatant indifference for
important safeguards. He has a history of actively misleading his treatment [team] relative to gambling activity, financial matters, and associations with women not
approved by his treatment team, all known risk factors
which remain largely unchanged. [The acquittee’s]
engagement in such behaviors exacerbates his risk to
reside safely in the community.
‘‘[The acquittee’s] poor judgment and disregard for
established limits that are designed to mitigate his risk
have resulted in significant consequences to his goal
of transitioning to the community. [The acquittee] has
continued to demonstrate a blatant indifference to safeguards, rules, and stipulations designed to promote his
recovery and prevent his involvement in activities that
may reactivate his risk factors. [The acquittee’s] judgment remains compromised as he continues to be
unable to discern what is in his best interest and what
behaviors may pose a risk to him. He continues to justify
his refusal to follow stipulations simply because he
does not believe that they should apply to him. [The
acquittee’s] treaters have been unable to understand the
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.’’
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State v. Ardizzone
origins and motivations for [the acquittee’s] repeated
engagement in self-sabotaging behavior, thereby limiting appropriate interventions for his antisocial traits
and stating (or rendering judgment) that the same
behavior would likely continue.
‘‘Given [the acquittee’s] failure to conform his behavior appropriately in supervised settings, the [b]oard concludes that [the acquittee’s] behavior in a non-supervised setting would deteriorate, thereby increasing his
risk for treatment noncompliance. Therefore, the [b]oard
finds that [the acquittee] cannot reside safely in the community without [b]oard oversight and should remain
under the supervision and jurisdiction of the [b]oard.’’
On November 30, 2021, the board issued a memorandum of decision in which it found the following facts:
‘‘[The acquittee] is an individual with psychiatric illness
requiring care, custody, and treatment. During this
review period, [the acquittee] remained hospitalized
and engaged in the same behaviors of concern from
previous reporting periods. While [the acquittee] remained
cooperative with medication, he continued to struggle
with behaviors that elevate his risk and raise concerns
for his treatment team. [The acquittee] continued to
exhibit impulsive and emotionally driven behaviors.
Also, he continued to display inappropriate behavior
toward staff members and to pursue relationships not
supported by his treatment team. [The acquittee’s] behavior continues to have a deceptive undertone where he
will express remorse and cooperation after he is found
to violate a rule; however, he can also respond with
volatile behavior such as chair flipping. The board is
concerned about [the acquittee] having unsupervised
community time as he continued to conceal information
from his treatment team, disregarded hospital and societal rules/norms and has struggled with emotional regulation.’’ The board concluded that ‘‘[the acquittee] has
a psychiatric disability to the extent that his discharge
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State v. Ardizzone
or conditional release would constitute a danger to
himself or others.’’
On February 2, 2022, pursuant to General Statutes
§ 17a-586,7 the acquittee’s then current facility, Whiting
Forensic Hospital (hospital), provided an updated
report to the board on his mental condition, treatment
progress, and current assessment of his risk (hospital’s
report). The hospital found that the acquittee ‘‘has
chronic difficulty adhering to rules and maintaining
appropriate boundaries, particularly with women. This,
coupled with his limited insight, affective reactivity,
and low frustration tolerance when situations do not
go according to his expectations, resulted in periods
of interpersonal discord and conflict with others.’’ Additionally, the acquittee ‘‘displayed residual paranoid
thinking, but his psychotic symptoms were otherwise
non-acute. His adherence to psychotropic medications
was initially inconsistent, however as the reporting
period progressed, he became more amenable to making adjustments to his medication regimen as recommended. [The acquittee’s] privilege level fluctuated during the reporting period in response to mood dysregulation
and boundary violations. He continued to participate in
weekly individual psychotherapy, and although initially
his attendance in recommended groups was sporadic,
his attendance improved over the course of the reporting period.’’
The hospital also stated: ‘‘For the first few months
of this reporting period, [the acquittee] continued to
7
General Statutes § 17a-586 provides: ‘‘The superintendent of any hospital
for psychiatric disabilities in which an acquittee has been confined or the
Commissioner of Developmental Services with whom an acquittee has been
placed pursuant to order of the board, or the person or agency responsible
for the supervision or treatment of a conditionally released acquittee, shall
submit to the board at least every six months a written report with respect
to the mental condition of the acquittee. The board shall furnish copies of
the report to the counsel for the acquittee and the state’s attorney.’’
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State v. Ardizzone
require ongoing reminders and education on maintaining appropriate boundaries particularly as it pertained to his interactions with two female staff members. To summarize, in August, [2021], a female staff
member who had previously been transferred to another
unit after repeated concerns with [the acquittee],
reported that during breakfast in the [hospital’s] dining
hall, [the acquittee] continuously stared at her causing
her to become uncomfortable. Unit staff members also
observed [the acquittee] looking out the window in
order to watch this staff person in the parking lot. In
addition to the above, a different female employee of
the hospital reached out to hospital administration; she
reported that [the acquittee] called her several times
at her assigned work location within the hospital and
suggested that they walk outdoors together, and on a
few occasions he followed her while outside on hospital
grounds. Previously, when she worked on [the acquittee’s]
unit, he was observed to have followed her on the treatment unit as well. Hospital administration discussed
their concerns with [the acquittee]. Although his insight
remained limited, he agreed to stop contacting and following this staff person. The treatment team then discussed the incidents involving both women with [the
acquittee] on September 17, 2021. Although [the acquittee]
was receptive to discussion during his previous conversation with hospital administrators, on this occasion,
he became argumentative and threw a chair in the direction of [the] [p]rincipal [p]sychiatrist, James Gusfa
. . . . In response, to address safety concerns and to
better monitor [the acquittee] in light of his increased
reactivity, his privilege level was decreased . . . .
‘‘To address [the acquittee’s] poor boundaries, emotional outbursts, and in an attempt to help him move
forward with his desired goal of community reintegration, the treatment team developed a behavioral support
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State v. Ardizzone
plan. The behavioral support plan outlined clear expectations of [the acquittee] . . . [and] his treaters relayed
that . . . [a]dherence with a behavioral support plan
would demonstrate his ability to abide by rules and
expectations and allow for reasonable discussions
related to [t]emporary [l]eave in the future. [The acquittee]
reviewed, agreed to, and signed the behavioral support
plan on September 24, 2021 . . . .
‘‘Despite [the acquittee’s] efforts to improve his
behavior and adhere to the behavioral support plan,
interpersonal boundaries and following hospital rules
and protocols remained challenging for him. A continued area of concern was money management and excessive spending. [The acquittee] continued to demonstrate poor judgment with his financial decisions and
had limited insight into how his spending was a risk
factor. . . . Notably, staff continued to remind [the
acquittee] of the rules and expectations around money
[at the hospital] and encouraged him to consider his
long-term goal of transitioning to the community and
the importance of both demonstrating adherence to
unit rules and expectations as well as ensuring he had
adequate funds to transfer to the community.’’
The hospital’s report concluded that, ‘‘[o]verall, [the
acquittee] had an uneven reporting period. He initially
continued to present with difficulty maintaining prosocial interpersonal boundaries and making sound
choices with regard to his finances. Through ongoing
treatment targeting those areas paired with the development and implementation of a behavioral support plan,
by the close of the reporting period, [the acquittee]
made and maintained some clinical gains. While initially
reluctant to do so, as the reporting period progressed,
he collaborated with his psychiatrist to make adjustments to his medication to target residual paranoia,
impulsivity, and frequent mood changes, particularly
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State v. Ardizzone
frustration with hospital rules.’’ On the basis of its findings, the hospital recommended that the board maintain
the acquittee’s treatment status.
On April 27 and 28, 2022, the court, Dennis, J., conducted a trial on the acquittee’s application for discharge. On the first day of trial, the acquittee filed a
memorandum of law in which he conceded that the
board’s report to the court was admissible under our
Supreme Court’s precedent; see footnote 3 of this opinion; but nevertheless asserted that its admission raised
evidentiary and constitutional concerns.8 On the same
day, the acquittee also filed a motion in limine setting
forth a constitutional challenge to § 17a-593 that he
intended to address in a posttrial memorandum. On
August 3, 2022, the parties presented their final arguments to the court. On November 15, 2022, the acquittee
filed a posttrial memorandum in which he presented
his evidentiary and constitutional challenges regarding
8
In particular, he argued that the board’s report to the court should not
be admitted because it constitutes inadmissible hearsay and violates his
procedural due process rights.
At the beginning of trial, the acquittee’s counsel stated: ‘‘I would like to
note for the record that, in accordance with the statutory procedure, the
board has filed a report to the court, as is required under the statute, and
that item is a matter of evidence as per [State v. Harris, 277 Conn. 378,
890
A.2d 559 (2006)] to the extent that it may be referred to in testimony of
witnesses . . . .’’ He thereafter requested the court to rule on his memorandum of law regarding the board’s report to the court, which the court did
not do at that time.
During closing arguments, on August 3, 2022, the acquittee’s counsel
stated: ‘‘The law is very clear. The board’s report to [the] court has the . . .
legal status, at least up until now, by [Harris], as an expert report. . . .
[W]e’ve litigated in the past whether it should be stricken for various reasons,
and we’ve lost those claims. However, the court, in [Harris], indicated that
we can use any other means at our disposal, or any other . . . standard
means to challenge the weight of the evidence, which we’ve done.
…
‘‘[R]ather than . . . arguing that the [board’s report to the court] itself
should be stricken, I think we have made arguments to show that Your
Honor should give it very little weight at this point in time because it’s not
a valid forensic risk assessment and screening.’’
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the board’s report and § 17a-593, addressed this court’s
opinion affirming the denial of his November 19, 2019
application for discharge, and requested retroactive
application of No. 22-45, §§ 4 through 6, of the 2022
Public Acts (P.A. 22-45),9 which became effective on
October 1, 2022, subsequent to his trial.
On March 1, 2023, the trial court issued a memorandum of decision regarding the acquittee’s arguments set
9
General Statutes § 17a-584 provides in relevant part: ‘‘At any hearing
before the board considering the discharge, conditional release or confinement of the acquittee . . . the board shall make a finding as to the mental
condition of the acquittee and, considering that its primary concerns are
the protection of society and the safety and well-being of the acquittee,
shall do one of the following: (1) If the board finds that the acquittee is a
person who should be discharged, it shall recommend such discharge to
the court . . . . (2) If the board finds that the acquittee is a person who
should be conditionally released, the board shall order the acquittee conditionally released subject to such conditions as are necessary to prevent the
acquittee from constituting a danger to himself or others. (3) If the board
finds that the acquittee is a person who should be confined, the board shall
order the person confined in a hospital for psychiatric disabilities or placed
with the Commissioner of Developmental Services for custody, care and
treatment.’’ (Emphasis added.)
The legislature amended § 17a-584, effective October 1, 2022, to add to
the primary concerns of the board the phrase ‘‘the safety and well-being of
the acquittee.’’ See P.A. 22-45, § 4.
General Statutes § 17a-593 (g) provides: ‘‘The court shall make a finding
as to the mental condition of the acquittee and, considering that its primary
concern is the protection of society and its secondary concern is the safety
and well-being of the acquittee, make one of the following orders: (1) If
the court finds that the acquittee is not a person who should be discharged,
the court shall order the recommendation or application for discharge be
dismissed; or (2) if the court finds that the acquittee is a person who should
be discharged, the court shall order the acquittee discharged from custody.
The court shall send a copy of such finding and order to the board.’’ (Emphasis added.)
The legislature amended subsection (g) of § 17a-593, effective October 1,
2022, to add the phrase ‘‘and its secondary concern is the safety and well-being of the acquittee.’’ See P.A. 22-45, § 5.
Additionally, the legislature mandated that, ‘‘[o]n or before January 1, 2023,
the Commissioner of Mental Health and Addiction Services shall convene
a working group to evaluate the [board],’’ as well as guidelines and requirements of such working group. See P.A. 22-45, § 6.
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forth in his memorandum of law regarding the board’s
report to the court, motion in limine, request to apply
P.A. 22-45 retroactively, and application for discharge.
The court rejected the acquittee’s arguments presented
in his memorandum of law and denied his motion in
limine, finding that the board’s report was admissible
and that § 17a-593 is not void for vagueness. The court
granted the acquittee’s request to apply P.A. 22-45, § 5,
retroactively10 indicating that, ‘‘[a]s the amended statute
[§ 17a-593] is procedural in nature, and is being applied
in a civil case, there is a presumption of retroactivity.’’
The court thereafter found that ‘‘[the acquittee] has not
met his burden of proving by a preponderance of the
evidence that he is a person who should be discharged.
. . . [He] suffers from a psychiatric illness, which
requires ongoing treatment, and [he] would be a danger
to himself or others if discharged from [the board’s]
supervision.’’ The court thus concluded that the
acquittee should remain under the board’s jurisdiction
and, accordingly, denied his application for discharge.
This appeal followed.
I
The acquittee first claims that the trial court improperly found that, if he were discharged from the jurisdiction of the board, he would present a danger to himself
or others because (1) four providers testified that he
would not constitute a danger to himself or others, (2)
he had not physically attacked any person in twenty
years, and (3) the state failed to prove a causal connection between his mental illness and dangerousness.
After reviewing the totality of the record, we cannot
conclude that the court’s finding of dangerousness was
clearly erroneous.
10
The trial court’s retroactive application of P.A. 22-45, §§ 4 through 6, is
not at issue on appeal. Accordingly, all references herein to § 17a-593 are
to the current revision of the statute.
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As a preliminary matter, we note that ‘‘the confinement of insanity acquittees, although resulting initially
from an adjudication in the criminal justice system, is
not punishment for a crime. The purpose of commitment following an insanity acquittal, like that of civil
commitment, is to treat the individual’s mental illness
and protect him and society from his potential dangerousness. The committed acquittee is entitled to release
when he has recovered his sanity or is no longer dangerous. . . . As he was not convicted, he may not be punished. His confinement rests on his continuing illness
and dangerousness.’’ (Internal quotation marks omitted.) Payne v. Fairfield Hills Hospital, 215 Conn. 675,
683–84, 578 A.2d 1025 (1990). ‘‘[A]s a matter of due
process, an acquittee is entitled to release when he has
recovered his sanity or is no longer dangerous.’’ State
v. Metz, 230 Conn. 400, 417–18,
645 A.2d 965 (1994).
As our Supreme Court has explained, ‘‘[a]fter an
acquittee has applied for discharge from the board’s
jurisdiction and the board, in accordance with the
requirement of § 17a-593 (d), has filed its report regarding whether the acquittee should be discharged, the
trial court must hold a hearing on the application, at
which the acquittee bears the burden of proving that
he or she is a person who should be discharged. General
Statutes § 17a-593 (f).11 After the hearing, the court,
considering that its primary concern is the protection
of society [and its secondary concern is the safety and
well-being of the acquittee], must make a finding as
to whether the acquittee is a person who should be
discharged. General Statutes § 17a-593 (g). The term
[p]erson who should be discharged is defined as an
11
‘‘General Statutes § 17a-593 (f) provides [in relevant part that, at a hearing on an application for discharge], ‘‘ ‘the acquittee shall have the burden
of proving by a preponderance of the evidence that the acquittee is a person
who should be discharged.’ ’’ State v. March, 265 Conn. 697, 705 n.10,
830
A.2d 212 (2003).
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acquittee who does not have psychiatric disabilities
. . . to the extent that his discharge would constitute
a danger to himself or others. . . . General Statutes
§ 17a-580 (11).’’ (Footnote altered; footnote omitted;
internal quotation marks omitted.) State v. March, 265
Conn. 697, 705,
830 A.2d 212 (2003). Our Supreme Court
has defined ‘‘danger to self or to 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.’’ (Internal quotation marks omitted.) Id., 709. It
has further defined ‘‘imminent’’ as ‘‘ready to take place
[or] hanging threateningly over one’s head . . . .’’
(Internal quotation marks omitted.) State v. Harris, 277
Conn. 378, 389,
890 A.2d 559 (2006).
The determination of dangerousness presents a question of fact for the court to resolve. See State v. March,
supra, 265 Conn. 710–11. Accordingly, appellate review
of a court’s dangerousness determination is governed
by the clearly erroneous standard. See id., 711–12. ‘‘A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed
. . . .’’ (Internal quotation marks omitted.) Meineke
Bristol, LLC v. Premier Auto, LLC, 227 Conn. App.
64, 73,
319 A.3d 826 (2024). ‘‘In applying the clearly
erroneous standard to the findings of a trial court, we
keep constantly in mind that our function is not to
decide factual issues de novo. Our authority . . . is
circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior
position to appraise and weigh the evidence . . . .’’
(Internal quotation marks omitted.) State v. Jacob, 69
Conn. App. 666, 680,
798 A.2d 974 (2002).
Although the acquittee claims that the court’s dangerousness determination is clearly erroneous, the record
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belies that claim. In its memorandum of decision, the
court indicated that it had considered, inter alia, the
testimony of various medical professionals, the board’s
report to the court, and the hospital’s report. The court
specifically credited the hospital’s report that the
acquittee has ‘‘chronic difficulty with rule adherence
and maintaining appropriate boundaries,’’ that he
engaged in stalking behavior toward two female staff
members, that he threw a chair in the direction of Dr.
Gusfa, and that his money management and excessive
spending put him at risk for decompensation. Additionally, the court credited the board’s report to the court
that ‘‘[h]e has a history of actively misleading his treatment team relative to gambling activity, financial matters, and unapproved associations with women, which
the [b]oard finds to be known risk factors which exacerbate his risk to reside safely in the community,’’ that
his ‘‘poor judgment in disregarding established limits
designed to mitigate his risk have resulted in significant
consequences to his goal of transitioning to the community,’’ and that ‘‘[h]e continues to demonstrate a blatant
indifference to safeguards, rules and stipulations
designed to promote his recovery and prevent his
involvement in activities that may activate his risk factors.’’ The court, as the trier of fact, was entitled to
credit that evidence. See State v. Lawrence, 282 Conn.
141, 155,
920 A.2d 236 (2007) (‘‘[i]t is within the province
of the trial court, when sitting as the fact finder, to
weigh the evidence presented and determine the credibility and effect to be given the evidence’’ (internal
quotation marks omitted)). We conclude that the
board’s report to the court and the hospital’s report
provide ample support for the court to reasonably infer
that the acquittee, if discharged from the jurisdiction
of the board, poses a risk of imminent physical injury
to himself or others.
The acquittee nevertheless points to the testimony
of four providers—Marc Hillbrand and Andrew Meisler,
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State v. Ardizzone
psychologists licensed in Connecticut, Gregory
Peterson, a psychiatrist for the hospital, and Brian Conover, a clinical psychologist for the hospital—to support
his argument that he is not a danger to himself or others.
We are not persuaded.
As this court has observed, ‘‘psychiatric predictions
of future dangerousness are tentative at best and are
frequently conceded, even within the profession, to be
unreliable. . . . Consequently, both the American Psychiatric Association . . . and the American Bar Association . . . have cautioned against the unfettered reliance in the criminal justice context on expert
psychiatric predictions of future dangerousness as a
predicate to the release from confinement of persons
who have been adjudged guilty of, but not criminally
responsible for, a criminal offense.
‘‘In addition, the goals of a treating psychiatrist frequently conflict with the goals of the criminal justice
system. . . . While the psychiatrist must be concerned
primarily with therapeutic goals, the court must give
priority to the public safety ramifications of releasing
from confinement an individual who has already shown
a propensity for violence. 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 [acquittee] must
be balanced against the security interests of society.
. . . The awesome task of weighing these two interests
and arriving at a decision concerning release rests
finally with the trial court. . . .
‘‘Although psychiatric testimony as to the [acquittee’s]
condition may form an important part of the trial court’s
ultimate determination, the court is not bound by this
evidence. . . . It may, in its discretion, accept all, part,
or none of the experts’ testimony.’’ (Internal quotation
marks omitted.) State v. Corr, 87 Conn. App. 717, 725,
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867 A.2d 124, cert. denied,
273 Conn. 929,
873 A.2d 998
(2005); see also Song v. Collins, 152 Conn. App. 373,
376, 97 A.3d 1024 (2014) (finder of fact was ‘‘free to
disbelieve, in whole or in part, the testimony of either
or both of the expert witnesses who testified at trial’’
(internal quotation marks omitted)).
The court, in its memorandum of decision, discussed
the testimony and reports of the acquittee’s providers,
particularly as they pertained to risks associated with
the acquittee’s stalking behavior. The court stated: ‘‘Dr.
Meisler was asked what conclusions he would draw
from the repeated instances of harassing or stalking
behavior with various females. Dr. Meisler acknowledged that the rules and regulations put in place have
been unsuccessful in stopping those behaviors. Noting
that it is unlikely that [the acquittee] will engage in any
sexually aggressive behaviors, he conceded that there
is risk that he will continue with the behaviors including
unwanted attention, phone calls, et cetera.’’ The court
also noted that, ‘‘[a]lthough it was Dr. Conover’s opinion
that [the acquittee] would not cross lines of appropriate
behavior or become physically aggressive, absent any
psychotic or psychiatric symptoms, he did concede that
assaultive/aggressive acts, stealing items and stalking
type behaviors could all be risk factors for future violence.’’ Furthermore, Dr. Hillbrand acknowledged the
acquittee’s stalking incidents and agreed that rejection
from a female romantic interest, peer member, or staff
member would be a stressor that could exacerbate the
acquittee’s risk of decompensation.12
12
The following exchange occurred between the state’s counsel, Margaret
E. Kelley, state’s attorney for the judicial district of Ansonia-Milford, and
Dr. Hillbrand:
‘‘Q. And when looking to the future and looking for possibilities of stressors, you had indicated that those stressors would not be present. Wouldn’t
a rejection by a female or someone that [the acquittee] was interested in,
couldn’t that, in fact, be a very important stressor that may exacerbate
the situation?
‘‘A. Oh, yes. I think he’s vulnerable like any human being to experiencing
distrust of a failed relationship.
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State v. Ardizzone
After considering Dr. Meisler’s and Dr. Conover’s testimonies, which indicate that the acquittee’s stalking
behavior is likely to continue, and Dr. Hillbrand’s testimony, which indicates that rejection from a romantic
interest could result in the acquittee’s decompensation,
the court reasonably could infer that, if the acquittee
were discharged, he would present a risk of imminent
physical injury to others. Such an inference is further
supported by the court’s explanation that, ‘‘[i]n
assessing the implications of [the acquittee’s] serious,
and frequently obsessive ‘boundary issues’ with women,
the court is mindful that the crime of stalking is included
in the category of ‘crimes against security of person’
in the Penal Code.’’ See General Statutes § 53a-181d (b)
(1) (A) and (B) (defining stalking as person knowingly
engaging in course of conduct, directed at specific person, that would cause reasonable person to fear for his
or her physical safety or suffer emotional distress);
General Statutes § 53a-181e (a) (person guilty of third
degree stalking when such person recklessly causes
another person to reasonably fear for his or her physical
safety or suffer emotional distress).
Even if the providers’ testimonies supported the
acquittee’s contention that he is not a danger to himself
or others, it remained within the discretion of the trial
court, as the trier of fact, to credit or discredit such
evidence. See State v. Nowell, 262 Conn. 686, 696,
817
A.2d 76 (2003) (‘‘the testimony was for the trial court
to assess and [reviewing courts] have no appropriate
‘‘Q. And in your review of the report to the court, as well as the periodic
six month reports, you’re aware, are you not, that there have been claims
that [the acquittee] essentially stalked some of the female staff members?
You’re aware of that?
‘‘A. Yes.
‘‘Q. And when you talk about stressors, would not the rejection from a
peer member or a female staff member, would that also not be a stressor situation?
‘‘A. Yes, it is.’’
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role at this level in determining which of the various
witnesses to credit’’); see also State v. Ardizzone, supra,215 Conn. App. 870 (‘‘[a]s sole arbiter of credibility, the
[trial] court was free to find [some] testimony more
compelling’’ than other testimony); State v. Damone,
148 Conn. App. 137, 174,
83 A.3d 1227 (‘‘[a]lthough the
acquittee presented the testimony of an expert who
testified that he did not present a danger either to himself or to others, the court was free to reject that testimony in favor of the findings of the board’’), cert.
denied, 311 Conn. 936,
88 A.3d 550 (2014). Thus, we
reject the acquittee’s argument that his providers’ testimonies render the court’s dangerousness determination
clearly erroneous.
The acquittee additionally argues that he has not
physically attacked another person in twenty years and,
therefore, the evidence shows that he is not a danger
to himself or others. This argument is belied by the
evidence. In 2016, the acquittee was transferred to a
maximum security unit as a result of allegations that he
attempted to pay another patient to assault his treating
psychiatrist. The acquittee also engaged in stalking
behavior toward two female staff members and, when
the hospital’s treatment team addressed such behavior,
the acquittee threw a chair in the direction of Dr. Gusfa.
Although Dr. Gusfa testified before the board that the
acquittee did not attack him with the chair, he described
the acquittee’s behavior as explosive, impulsive, and
lacking forethought. Even if the acquittee did not physically attack his providers or female staff members, the
court could reasonably infer from such behavior that
the acquittee continues to present a danger to others.
Lastly, the acquittee argues that the court’s dangerousness determination is clearly erroneous because the
state did not establish a causal connection or nexus
between the acquittee’s mental illness and his dangerousness. To support his argument, the acquittee cites
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State v. Ardizzone
to medical malpractice cases in which ‘‘[e]xpert medical
opinion evidence is usually required to show the cause
of an injury or disease because the medical effect on
the human system of the infliction of injuries is generally not within the sphere of the common knowledge
of the lay person.’’ (Internal quotation marks omitted.)
Cockayne v. Bristol Hospital, Inc., 210 Conn. App. 450,
460,
270 A.3d 713, cert. denied,
343 Conn. 906,
272 A.3d
1128 (2022). Medical malpractice cases, however, are
not applicable in the present matter because we have
stated that ‘‘the determination of dangerousness in the
context of a mental status hearing reflects a societal
rather than a medical judgment,’’ and the court has
discretion to accept all, part, or none of an expert’s
testimony in making such determination. (Emphasis
added; internal quotation marks omitted.) State v. Corr,
supra,87 Conn. App. 725. Moreover, the legislature has
placed the burden on the acquittee to prove, by a preponderance of the evidence, that he is a person who
should be discharged. General Statutes §17a-593 (f).
Accordingly, the state was not required to produce
expert medical testimony establishing a causal connection between the acquittee’s mental illness and his dangerousness.
The acquittee also relies on Oregon case law to support his argument that the state is required to establish
a causal connection between his mental illness and
dangerousness. He argues that Oregon cases are
instructive in the present matter because (1) Connecticut’s board is modeled after Oregon’s Psychiatric
Review Board (Oregon board), and (2) Connecticut and
Oregon are the only two states with similar statutory
schemes governing acquittees. The state, on the other
hand, argues that Oregon imposes a different statutory
burden and, therefore, Oregon case law is not instructive in the present matter. We agree with the state.
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To establish the necessity of a nexus requirement, the
acquittee cites to Drew v. Psychiatric Security Review
Board, 322 Or. 491, 499,
909 P.2d 1211 (1996) (‘‘the
record contains substantial evidence that could support
[the Oregon board’s] finding that [the acquittee] was a
substantial danger to others, but [the Oregon board]
did not connect its decision to that evidence’’), and
Rinne v. Psychiatric Security Review Board, 297 Or.
App. 549, 559,
443 P.3d 731 (2019) (considering ‘‘whether
substantial evidence and reason support [the Oregon
board’s] finding of a causal relationship between any
qualifying mental disease or defect that [the acquittee]
has and the substantial danger to others that he presents’’). Connecticut and Oregon, however, differ on
which party bears the burden when an acquittee files
an application for discharge. The Connecticut legislature has placed the burden of proof on the acquittee
to demonstrate, by a preponderance of the evidence,
that he is a person who should be discharged. General
Statutes § 17a-593 (f). On the other hand, after an
acquittee has been committed for two years, the Oregon
legislature shifts the burden to the state to prove, by a
preponderance of the evidence, that the acquittee
should not be discharged. Or. Rev. Stat. § 161.341 (4)
(2023).13 In this significant respect, the two statutory
schemes governing applications for discharge are materially different. Consequently, the acquittee’s contention
that we should follow Drew v. Psychiatric Security
Review Board, supra, 499, and Rinne v. Psychiatric
Security Review Board, supra, 559, in requiring a nexus
13
Section 161.341 (4) of the Oregon Revised Statutes provides in relevant
part: ‘‘When application is made [for discharge or conditional release] . . .
[t]he applicant must prove by a preponderance of the evidence the applicant’s fitness for discharge or conditional release . . . unless more than
two years has passed since the state had the burden of proof on that issue,
in which case the state shall have the burden of proving by a preponderance
of the evidence the applicant’s lack of fitness for discharge or conditional
release. . . .’’
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State v. Ardizzone
between the acquittee’s mental illness and dangerousness is based on a false premise, namely, that our statutory scheme concerning discharge applications is substantially similar to Oregon’s statutory scheme. For that
reason, we are not persuaded that any nexus requirement set forth in Rinne and Drew is applicable to the
present matter.
The state maintains that the record nonetheless supports the existence of a causal connection between the
acquittee’s mental illness, his rule breaking behavior,
and his risk of dangerousness. In support of its argument, the state points to the board’s report to the court,
which states that the acquittee demonstrated ‘‘poor
judgment and disregard for established limits that are
designed to mitigate his risk,’’ that he ‘‘continued to
demonstrate a blatant indifference to safeguards, rules,
and stipulations designed to promote his recovery and
prevent his involvement in activities that may reactivate
his risk factors,’’ and that ‘‘his judgment remains compromised as he continues to be unable to discern what
is in his best interest and what behaviors may pose a
risk to him.’’ We conclude that, on the basis of such
evidence, the court reasonably could infer that the
acquittee’s mental illness causes him to engage in
behaviors that exacerbate his dangerousness.
The acquittee bore the burden of demonstrating that
he is a person who should be discharged. See State v.
March, supra,265 Conn. 705. The record before us
contains evidence to support the court’s finding that,
if discharged, the acquittee would constitute a danger to
himself or others. That finding, therefore, is not clearly
erroneous. Because the acquittee did not satisfy his
statutory burden of proof pursuant to § 17a-593, the
court properly determined that the acquittee is not a
person who should be discharged from the jurisdiction
of the board.
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II
The acquittee next claims that § 17a-593, as applied
to him in the present matter, is unconstitutionally vague.
He argues that (1) he had inadequate notice that his
noncompliance with the hospital’s rules would result
in denial of his application for discharge and (2) the
court arbitrarily denied his application for discharge
on the basis of his noncompliance with rules that are
unconnected to his mental illness and risk of dangerousness. The state, on the other hand, argues that § 17a-
593, as applied to the acquittee, is not unconstitutionally
vague because the acquittee’s noncompliance with rules
is associated with known risk factors which were communicated to the acquittee. We agree with the state.
We begin with the applicable standard of review and
general governing principles. ‘‘The determination of
whether a statutory provision is unconstitutionally
vague is a question of law over which we exercise de
novo review.’’ State v. Winot, 294 Conn. 753, 758–59,
988
A.2d 188 (2010). ‘‘In challenging the constitutionality of
a statute, the defendant bears a heavy burden. To prevail
on his vagueness claim, [t]he defendant must demonstrate beyond a reasonable doubt that the statute, as
applied to him, deprived him of adequate notice of what
conduct the statute proscribed or that he fell victim to
arbitrary and discriminatory enforcement. . . . The
proper test for determining [whether] a statute is vague
as applied is whether a reasonable person would have
anticipated that the statute would apply to his or her
particular conduct. . . . The test is objectively applied
to the actor’s conduct and judged by a reasonable person’s reading of the statute. . . . [O]ur fundamental
inquiry is whether a person of ordinary intelligence
would comprehend that the defendant’s acts were prohibited . . . .’’ (Internal quotation marks omitted.)
State v. Smith, 139 Conn. App. 107, 110,
54 A.3d 638
(2012).
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State v. Ardizzone
With these principles in mind, we turn to the statute
at issue. Section 17a-593 provides that ‘‘[a]n acquittee
may apply for discharge [from the jurisdiction of the
board] not more than once every six months . . . .’’
General Statutes § 17a-593 (a). ‘‘The court shall forward
any application for discharge received from the
acquittee . . . to the board. The board shall . . . 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 § 17a-593 (d). ‘‘Within ten days of receipt . . . of
the board’s report filed under subsection (d) of this
section, 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. . . .’’ General Statutes
§ 17a-593 (e).
‘‘After receipt of the board’s report and any separate
examination reports, the court shall promptly commence a hearing on the . . . application for discharge
. . . . At the hearing, the acquittee shall have the burden of proving by a preponderance of the evidence that
the acquittee is a person who should be discharged.’’
General Statutes § 17a-593 (f). A ‘‘ ‘[p]erson who should
be discharged’ means an acquittee who does not have
psychiatric disabilities . . . to the extent that such
acquittee’s discharge would constitute a danger to himself or others . . . .’’ General Statutes § 17a-580 (11).
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‘‘ ‘Danger to himself or others’ includes danger to the
property of others . . . .’’ General Statutes § 17a-580
(5).
After the hearing, ‘‘[t]he court shall make a finding
as to the mental condition of the acquittee and, considering that its primary concern is the protection of society and its secondary concern is the safety and well-being of the acquittee, make one of the following orders:
(1) If the court finds that the acquittee is not a person
who should be discharged, the court shall order the
recommendation or application for discharge be dismissed; or (2) if the court finds that the acquittee is a
person who should be discharged, the court shall order
the acquittee discharged from custody. . . .’’ General
Statutes § 17a-593 (g).
‘‘We note that the statute at issue in the present case,
§ 17a-593, is not a criminal statute. [T]he confinement
of [not guilty by reason of mental disease or defect]
acquittees, although resulting initially from an adjudication in the criminal justice system, is not punishment
for a crime. The purpose of commitment following [a
not guilty by reason of mental disease or defect] acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his
potential dangerousness. . . . We also note that § 17a-
593 was not intended to guide any individual conduct
on the part of the acquittee but, rather, it serves to guide
the court in making a determination about whether
an acquittee is a person who should be discharged.’’
(Citation omitted; internal quotation marks omitted.)
State v. Jacob, supra,69 Conn. App. 673.
‘‘While a statute may be invalidated as impermissibly
vague as a result of a failure to give fair warning of the
conduct proscribed by law, generally, the fair-warning
requirement is not applicable to commitment scheme
challenges, since the person is not confined as a result
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State v. Ardizzone
of any particular acts he or she may have performed,
but is instead confined on the basis of his or her status.
. . .’’ 53 Am. Jur. 2d 464, Mentally Impaired Persons § 4
(1996). ‘‘We, nonetheless, apply the void for vagueness
doctrine to § 17a-593 in recognition of the fact that
involuntary commitment imposes a significant curtailment on liberty.’’ State v. Jacob, supra, 69 Conn.
App. 673–74.
This court has previously held that § 17a-593 is not
void for vagueness on its face14 because ‘‘the ordinary
meaning of the terms ‘danger’ and ‘dangerous,’ the statutory definition set out in [General Statutes] § 17a-495
(a) and (b)15 and our Supreme Court’s interpretation of
‘dangerousness’16 provide Connecticut acquittees with
fair warning of what ‘danger to himself or others’ means
for purposes of a § 17a-593 discharge application hearing, as well as the factors that a court may and should
consider in making such a determination.’’ (Footnotes
added.) Id., 677. Now we turn to the acquittee’s claims
that he lacked adequate notice and that he was the
victim of arbitrary and discriminatory enforcement.
14
‘‘A facial challenge, in this context, means a claim that the law is invalid
in toto–and therefore incapable of any valid application. . . . A facial challenge, as compared to an as applied challenge is not dependent on the facts
of a particular case.’’ (Citations omitted; emphasis added; internal quotation
marks omitted.) State v. Long, 268 Conn. 508, 522 n.21,
847 A.2d 862, cert.
denied, 543 U.S. 969,
125 S. Ct. 424,
160 L. Ed. 2d 340 (2004).
15
Subsections (a) and (b) of General Statutes § 17a-495, which are applicable to civil commitments, define ‘‘dangerous to himself or herself or others’’
to mean ‘‘there is a substantial risk that physical harm will be inflicted by
an individual upon his or her own person or upon another person . . . .’’
Because ‘‘the legislature . . . employed nearly identical phrases in both
the civil commitment and the insanity acquittee commitment statutory
schemes,’’ we previously have concluded that it ‘‘intend[ed] those phrases
to have the same meaning.’’ State v. Jacob, supra, 69 Conn. App. 675–76.
16
As previously stated in part I of this opinion, ‘‘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.’’ (Internal quotation marks omitted.)
State v. Dyous, 198 Conn. App. 253, 272,
233 A.3d 1138, cert. denied,
335
Conn. 948,
238 A.3d 17 (2020).
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A
The acquittee claims that he had inadequate notice
that violating the hospital’s rules would result in the
denial of his application for discharge pursuant to § 17a-
593 because the rule violations are not listed in the
relevant statutory scheme. We conclude that a reasonable person would have anticipated that the court would
consider the acquittee’s noncompliance with hospital
rules in making a dangerousness determination and,
therefore, the acquittee had adequate notice.
In the present matter, the evidence shows that the
acquittee was aware of the hospital’s rules and that the
rules were intended to mitigate his risk of dangerousness. The hospital’s report stated that the acquittee’s
treatment team provided ‘‘ongoing reminders and education on maintaining appropriate boundaries,’’ and it
developed a behavioral support plan ‘‘to help him move
forward with his desired goal of community reintegration . . . .’’ The behavioral support plan clearly outlined the hospital’s expectations of the acquittee and
his treatment team informed him that ‘‘[a]dherence with
a behavioral support plan would demonstrate his ability
to abide by rules and expectations and would allow for
reasonable discussions related to [t]emporary [l]eave
in the future.’’ The treatment team continued to provide
‘‘psychoeducation on appropriate boundaries and hospital rules and protocols. . . . Notably, staff continued
to remind [the acquittee] of the rules and expectations
around money . . . and encouraged him to consider
his long-term goal of transitioning to the community
and the importance of both demonstrating adherence
to unit rules and expectations as well as ensuring he
had adequate funds to transfer to the community.’’
The hospital, pursuant to § 17a-586, is required to
report on the acquittee’s mental health status every six
months, and we have stated that the court, in making
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State v. Ardizzone
a dangerousness determination, should ‘‘consider the
entire record available to it, including the [acquittee’s]
history of mental illness, his present and past diagnoses,
his past violent behavior, the nature of the offense for
which he was prosecuted, the need for continued medication and therapy, and the prospects for supervision
if released.’’ (Internal quotation marks omitted.) State
v. Ardizzone, supra,215 Conn. App. 874. The hospital
clearly informed the acquittee that the hospital rules
were intended to mitigate his risk of decompensation
and that failure to comply with hospital rules would
hinder his reintegration into the community. Accordingly, the acquittee had fair warning that the hospital
would report his noncompliance as it relates to his risk
for decompensation and that the court would consider
the hospital’s report in making its dangerousness determination.
Thus, after considering the hospital’s efforts to educate the acquittee on the importance of adhering to
its rules, we conclude that a reasonable person would
anticipate that the court would consider the acquittee’s
failure to abide by such rules in making a dangerousness
determination. Therefore, the acquittee has not met his
burden of proving beyond a reasonable doubt that he
had inadequate notice that noncompliance with the hospital’s rules could result in denial of his application for
discharge.
B
The acquittee additionally claims that he is a victim
of arbitrary and discriminatory enforcement of § 17a-
593 because the trial court made its dangerousness
determination on the basis of rule violations that are
unconnected to his mental illness and risk of dangerousness. We are not persuaded.
Although the acquittee maintains that the court made
its dangerousness determination on the basis of merely
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‘‘technical’’ violations of hospital rules, the court’s memorandum of decision describes the acquittee’s consistent pattern of noncompliant behavior, including violations of substantive rules. The board’s report to the
court, on which the court relied, stated: ‘‘Despite [the
acquittee’s] improvement relative to psychotic symptoms and aggression, [the acquittee] has consistently
displayed a disregard for the rules and protocols in his
various treatment settings. While some rule breaking
behaviors have been technical in nature, such as smoking cigarettes while escorted in the community, other
violations involved planning and deception, demonstrating a blatant indifference for important safeguards.’’ (Emphasis added.) Dr. Hillbrand testified that
the acquittee has a long history of violating the hospital’s rules, including ‘‘essential rules’’—taking medication, attending therapeutic activities, maintaining general cooperation, and maintaining good relationships
with peers and staff—and ‘‘minor rules’’—smoking and
contacting certain individuals without board approval.
Indeed, the record reveals that the acquittee took his
medication inconsistently, struggled to regulate his
emotions, engaged in financial deception, retaliated
against hospital staff members, engaged in stalking
behavior toward two female staff members, and threw
a chair in the direction of a provider. The court therefore
reached its dangerousness determination on the basis
of the acquittee’s severe and repetitive noncompliant
behavior.
Moreover, the evidence demonstrates that the
acquittee’s noncompliance with hospital rules is associated with risk factors for decompensation. The
acquittee argues that ‘‘gambling, excessive spending,
[and] involvement in secretive romantic relationships
do not constitute a danger to [himself] or anyone else.’’
The board, however, found that ‘‘[the acquittee’s]
engagement in such behaviors exacerbates his risk to
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reside safely in the community.’’ (Emphasis added.)
It also found that ‘‘[the acquittee’s] poor judgment and
disregard for established limits that are designed to
mitigate his risk have resulted in significant consequences to his goal of transitioning to the community.
[The acquittee] has continued to demonstrate a blatant
indifference to safeguards, rules, and stipulations
designed to promote his recovery and prevent his
involvement in activities that may reactivate his risk
factors.’’ (Emphasis added.) Accordingly, the hospital’s
rules have a direct correlation to the acquittee’s risk
for dangerousness.
Furthermore, the court expressly considered the
acquittee’s noncompliant behavior as it relates to his
risk of dangerousness by stating: ‘‘Of much concern to
this court is [the testimony of Paul Bryant, a psychiatrist] that, despite past efforts made by multiple treaters,
[the acquittee] has been unable to appreciate the potential impact that relational or financial stressors could
play on his psychotic illness, particularly in light of the
fact that these factors do appear to be related to some
past psychotic episodes he’s had, including the one that
led to the index offense.’’ (Emphasis omitted.) The court
also considered Dr. Hillbrand’s testimony in which he
acknowledged that rejection by romantic interests and
gambling are two stressors that may exacerbate the
acquittee’s risk of decompensation upon release.
Accordingly, the court made its dangerousness determination on the basis of rule violations that are associated
with risk factors for decompensation and dangerousness and, therefore, we conclude that the acquittee has
not met his burden of proving beyond a reasonable
doubt that he was the victim of arbitrary and discriminatory enforcement of § 17a-593.
Because the acquittee had notice of the prohibited
conduct and was not the victim of arbitrary enforcement, we conclude that the acquittee has failed to satisfy
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his burden of showing that § 17a-593 is unconstitutionally vague as applied to him.
The judgment is affirmed.
In this opinion the other judges concurred.
