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STATE OF CONNECTICUT v. FRANKLIN FOSTER
(AC 44043)
Cradle, Suarez and Seeley, Js.
Syllabus
The acquittee, who had been found not guilty of the crimes of burglary in
the first degree, risk of injury to a minor, assault in the third degree
and possession of weapon on school grounds, appealed to this court
from the judgment of the trial court granting the state’s petition seeking
his continued commitment to the jurisdiction of the Psychiatric Security
Review Board pursuant to statute (§ 17a-593). Held:
1. The trial court did not err in finding that the state met its burden under
§ 17a-593, governing continued commitment to the board, of establishing
by clear and convincing evidence that the acquittee currently was men-
tally ill and posed a risk of imminent harm to himself or others: contrary
to the acquittee’s claim, the court’s statements, in which it expressed
concern for the welfare of schoolchildren and women, were not
improper, as the court’s references to the well-being of schoolchildren
was logically linked to the offenses for which the acquittee was prose-
cuted, and the court did not suggest or explicitly state that the acquittee
had engaged in subsequent acts of violence toward a schoolchild, and
the court’s reference to the well-being of women logically was related
to the records of the acquittee’s confinement that were submitted in
evidence, those records reflecting that the acquittee’s treatment history
during his commitment included several instances in which he intimi-
dated, inappropriately touched, or made socially inappropriate state-
ments to female staff members; moreover, the court could have found
that, although under his current level of board supervision the acquittee
did not pose an imminent risk of physical injury to himself or others,
it was likely that he would pose an imminent risk of physical injury to
himself or others if he were to be released from the board’s supervision
entirely because the evidence before the court logically supported a
finding that he would risk relapse once outside of his present controlled
environment and present an imminent danger to himself or to others;
furthermore, the acquittee was unable to demonstrate that the court
erred in determining, based on the board’s report filed with the court,
that he did not have a sufficient history of being in a conditional release
status to support a conclusion that he could live in the community
without board oversight.
2. The trial court did not improperly reject the acquittee’s claim that the
recommitment procedure to which he was subjected under § 17a-593,
as applied to him, violated his right to equal protection guaranteed by
the federal constitution: the acquittee failed to establish the necessary
predicate for purposes of equal protection analysis, namely, that he was
similarly situated to civilly committed inmates, for the acquittee, to have
prevailed at his criminal trial on his insanity defense, had to prove that
there was a nexus between his mental illness and his violent criminal
conduct, and, in the civil commitment process, such a proven correlation
between mental illness and criminal conduct did not need to exist, and
the acquittee did not satisfactorily address the difference in circum-
stances; moreover, this court was not persuaded that, in light of the
continued danger that the acquittee posed to others due to his mental
illness, his progress in treatment or the fact that he had reached the
end of his maximum term of confinement should have led it to conclude
that he was similarly situated to inmates whose mental illness had
not manifested in criminal conduct, and these facts did not alter the
significance of the circumstances that led to the acquittee’s commitment,
let alone undermine the fact that his mental illness continued to pose
a danger to society.
(One judge concurring separately)
Argued September 12, 2022—officially released February 7, 2023
Procedural History
Petition for an order extending the acquittee’s com-
mitment to the Psychiatric Security Review Board,
brought to the Superior Court in the judicial district
of Stamford-Norwalk, geographical area number one,
where the court, Hon. Richard F. Comerford, Jr., judge
trial referee, denied the acquittee’s motions to dismiss
and to strike; thereafter, the matter was tried to the
court, Hon. Richard F. Comerford, Jr., judge trial ref-
eree; judgment granting the petition, from which the
acquittee appealed to this court. Affirmed.
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (acquittee).
James M. Ralls, special assistant state’s attorney,
with whom, on the brief, were Paul J. Ferencek, state’s
attorney, and Maureen Ornousky, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
SUAREZ, J. The acquittee, Franklin Foster, appeals
from the judgment of the trial court granting the state’s
petition seeking his continued commitment to the juris-
diction of the Psychiatric Security Review Board
(board) pursuant to General Statutes § 17a-593. The
acquittee claims that the court improperly (1) found
that the state had proven by clear and convincing evi-
dence that he suffered from a mental illness resulting
in his being a danger to himself or others and (2)
rejected his claim that § 17a-593, as applied to him,
violates his right to equal protection guaranteed by the
federal constitution. We affirm the judgment of the
trial court.
The following undisputed facts and procedural his-
tory underlie the present appeal. In 2002, following a
trial before the court, Hon. William F. Hickey, Jr.,
judge trial referee, the acquittee was found not guilty
by reason of mental disease or defect under General
Statutes § 53a-13 with respect to the following offenses:
burglary in the first degree in violation of General Stat-
utes (Rev. to 2001) § 53a-101 (a) (2); risk of injury to
a minor in violation of General Statutes § 53-21 (a) (1);
two counts of assault in the third degree in violation
of General Statutes § 53a-61 (a) (1); and two counts of
possession of a weapon on school grounds in violation
of General Statutes § 53a-217b (a) (1). The facts underly-
ing the offenses are not in dispute. On January 16, 2001,
the acquittee, then twenty-four years old, entered a
Greenwich middle school while in possession of two
knives. In a school hallway, the acquittee slapped,
punched, and kicked a male sixth grade student, and
he lifted a female sixth grade student over his head.
The acquittee was on school grounds without permis-
sion and his violent conduct was unprovoked.1 When
the acquittee was asked by the police why he was at
the school, he responded, ‘‘I’m here to fight the first
person I see. Both of us were in the wrong place at the
wrong time.’’ On April 2, 2003, the court committed the
acquittee to the jurisdiction of the board for a period
of time not to exceed ten years, and the acquittee was
subsequently admitted to a psychiatric hospital. By
agreement of the parties, the acquittee’s commitment
was continued by the court for one year in 2013, two
years in 2014, two years in 2016, and one year in 2018.
On July 24, 2018, the acquittee was granted conditional
release, at which time he was discharged from the hos-
pital and began living in the community. His release in
the community was conditioned upon his compliance
with several requirements pertaining to his ongoing
mental health treatment.
On July 9, 2019, the state filed a petition for continued
commitment pursuant to § 17a-593. Therein, it alleged
that ‘‘[t]he state is of the opinion that reasonable cause
exists to believe that the acquittee continues to be a
danger to himself or others if discharged’’ and that
‘‘without continued supervision by the board, [the
acquittee] would quickly decompensate and become a
risk.’’ Thereafter, the acquittee filed a motion to dismiss
the petition as well as an accompanying memorandum
of law in which he relied on equal protection grounds.
In broad terms, the acquittee argued that the recom-
mitment procedure that applies to him as a committed
acquittee pursuant to § 17a-593 differs from the recom-
mitment procedure that applies to civilly committed
inmates pursuant to General Statutes § 17a-515.2
Although the acquittee does not define the term ‘‘civilly
committed inmates’’ with specificity, courts in prior
cases have defined such persons as ‘‘mentally ill, con-
victed defendants who were transferred, pursuant to
General Statutes §§ 17a-498 and 17a-515, to a psychiat-
ric facility while they were serving their sentences, and
whom the state seeks to commit to a similar institution
after their sentences end.’’ (Footnote omitted.) State v.
Dyous, 307 Conn. 299, 301, 53 A.3d 153 (2012); see also
State v. Long, 268 Conn. 508, 514, 847 A.2d 862 (defining
‘‘civilly committed inmates’’ as ‘‘convicted prisoners
who subsequently are civilly committed to a mental
hospital at some point after they have been incarcer-
ated’’), cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L.
Ed. 2d 340 (2004). The acquittee also argued that such
disparate treatment of similarly situated persons cannot
withstand intermediate scrutiny under the equal protec-
tion clause of the federal constitution. On August 27,
2019, the board filed with the court a report in which
it recommended that the acquittee’s commitment be
extended for a period of time not to exceed five years.
On November 12, 2019, the acquittee filed a motion to
strike the portion of the board’s report filed with the
court that recommended that the acquittee’s commit-
ment be extended for five years, and he referred to
arguments that he made in his memorandum of law he
filed in support of his motion to dismiss.
In December, 2019, the court, Hon. Richard F. Com-
erford, Jr., judge trial referee, held a hearing related
to the acquittee’s motions and the state’s petition. In
oral rulings, the court denied the motion to dismiss the
petition and the motion to strike the board’s recommen-
dation. On December 18, 2019, the court issued a memo-
randum of decision granting the state’s petition to
extend the acquittee’s commitment, for a period of two
years, until December 23, 2021.
On March 16, 2020, the acquittee filed the present
appeal. On May 5, 2020, the acquittee filed a motion for
rectification in which he argued that, in its memoran-
dum of decision, the court mistakenly stated that he
had been acquitted of two counts of possession of a
firearm on school grounds, rather than two counts of
possession of a weapon on school grounds. On Septem-
ber 30, 2020, the court held a rectification hearing, dur-
ing which it stated that the acquittee’s request for rectifi-
cation was appropriate.
On March 26, 2021, the court, White, J., issued a
corrected memorandum of decision in which it reiter-
ated the findings and conclusions that had been set
forth in Judge Comerford’s original memorandum of
decision, thereby granting the petition for a period of
two years. In the corrected memorandum of decision,
however, the court addressed the grounds for the
acquittee’s motion for rectification by stating that the
acquittee had been acquitted of two counts of posses-
sion of a weapon on school grounds. The court also
incorporated by reference statements made by Judge
Comerford during the rectification hearing.3 Additional
facts and procedural history will be discussed as neces-
sary.
I
First, the acquittee claims that the court improperly
found that the state had proven by clear and convincing
evidence that he suffered from a mental illness resulting
in his being a danger to himself or others. Specifically,
he claims that the state was required, but failed, to
establish by clear and convincing evidence that he
posed a risk of imminent physical injury to himself or
others, meaning a risk that physical injury is ‘‘ready to
take place’’ or is ‘‘hanging threateningly over one’s
head.’’ (Internal quotation marks omitted.) We are not
persuaded.
In its corrected memorandum of decision, the court
stated: ‘‘The court finds that the state has established
by clear and convincing evidence that . . . [the
acquittee] suffers from a psychiatric illness diagnosed
as: schizoaffective disorder bi-polar type . . . border-
line intellectual functioning . . . inappropriate and
impulsive behaviors especially toward females . . .
[and] frustration difficulties.
‘‘While the record indicates progress, his current
release into the community is stable because of substan-
tial supervision and support. These mandated safe-
guards and supervision, including a required pharma-
ceutical regime, are necessary to avoid increasing his
risk to himself and the community. While [the acquittee]
has expressed [to his conditional release supervisor,
Madeline Rodriguez] an intent . . . to voluntarily com-
ply with mandated safeguards, a sufficient period of
time in conditional release status has not passed for the
court to give great weight to any such self-represented
intent. Based on the reliable and probative evidence,
the significant nature of the underlying criminal behav-
ior, and the history of [the acquittee], the court finds
that he cannot reside in the community without [the
board’s] continued oversight and support. . . .
‘‘[The acquittee] remains an individual with psychiat-
ric disabilities and he would constitute a danger to
himself or others if discharged from [the board’s] juris-
diction.’’
In its decision, the court also stated that it ‘‘incorpo-
rates by reference its oral remarks regarding the ratio-
nale involved in the court’s ultimate decisions on the
motion to dismiss, motion to strike, and the state’s
petition, made at the hearing on [the acquittee’s] motion
for rectification on September 30, 2021 . . . .’’ At the
rectification hearing, the court explained: ‘‘[M]y interest
is in the protection of schoolchildren, number one. And
number two, the secondary rationale . . . . I’m con-
cerned about the security of women and their person.
Irrespective of what the cause is, I am concerned . . .
that . . . women in [our] society be protected from
any kind of irrational behavior or inappropriate behav-
ior. And certainly, I’m concerned with the safety and
welfare of our schoolchildren here today.’’
Having discussed the court’s findings, we set forth
the applicable legal principles and our standard of
review. The court’s authority to continue an acquittee’s
commitment to the board is governed by § 17a-593.4
‘‘When a criminal defendant is found not guilty by rea-
son of mental disease or defect; see General Statutes
§ 53a-13; the court holds a hearing to assess that individ-
ual’s mental status and to determine whether confine-
ment or release is appropriate. . . . If the acquittee
fails to meet his burden of proof that he should be
discharged, the court must commit the acquittee to the
jurisdiction of the board for a term not exceeding the
maximum sentence that could have been imposed had
there been a criminal conviction. . . . The board deter-
mines where to confine the acquittee and holds hearings
and periodically reviews the progress of the acquittee
to determine whether conditional release or discharge
is warranted. . . . The acquittee also may apply period-
ically to be discharged from the board’s jurisdiction.
. . . This confinement, although resulting initially from
an adjudication in the criminal justice system, does not
constitute a punishment; rather, it serves the purposes
of treating the acquittee’s mental illness and protecting
the acquittee and society. . . . 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. . . .
‘‘At the conclusion of the commitment period, the
state has the option to seek an extension. When an
acquittee reaches the end of the definite term of com-
mitment set by the court, the state may submit a petition
for continued commitment if reasonable cause exists
to believe that the acquittee remains a person with
psychiatric disabilities . . . to the extent that his dis-
charge at the expiration of his maximum term of com-
mitment would constitute a danger to himself or others
. . . . After the state files its petition, the board is
required, by statute, to submit a report to the court
setting forth the board’s findings and conclusions as to
whether discharge is warranted. . . . 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 . . . . At this proceeding, the state
must prove the need for continued commitment by dem-
onstrating, under the clear and convincing evidence
standard, that the acquittee is currently mentally ill and
dangerous to himself or herself [or others] . . . . At
this proceeding, however, the court’s primary concern
is the protection of society. . . .
‘‘The determination as to whether an acquittee is
currently mentally ill to the extent that he would pose
a danger to himself or the community if discharged is
a question of fact and, therefore, our review of this
finding is governed by the clearly erroneous standard.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed
. . . . Conclusions are not erroneous unless they vio-
late law, logic or reason or are inconsistent with the
subordinate facts. The court’s conclusions are to be
tested by the findings and not the evidence. . . . Con-
clusions logically supported by the finding must stand.’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) State v. Dyous, 198 Conn. App.
253, 261–65, 233 A.3d 1138, cert. denied, 335 Conn. 948,
238 A.3d 17 (2020). ‘‘In applying the clearly erroneous
standard to the findings of a trial court, we keep con-
stantly in mind that our function is not to decide factual
issues de novo. Our authority . . . is circumscribed by
the deference we must give to [the] decisions of the
[trial court], who is usually in a superior position to
appraise and weigh the evidence.’’ (Internal quotation
marks omitted.) Id., 272.
Moreover, we recognize that ‘‘our decisional law
characterizes as difficult the task of the trial court in
evaluating an acquittee’s mental state and evaluating
his dangerousness. It is, of course, not easy to predict
future behavior. . . . Predictions of future dangerous-
ness are difficult for both psychiatrists and the courts to
make because of the inherent vagueness of the concept
itself, and such determinations must be dealt with by
trial courts to a considerable extent on a case-by-case
basis.’’ (Internal quotation marks omitted.) State v. War-
ren, 100 Conn. App. 407, 423 n.2, 919 A.2d 465 (2007).
The acquittee does not challenge the court’s finding
that he suffers from a mental illness. Instead, he chal-
lenges the court’s finding that he continues to pose
a danger to himself or others in the community. The
acquittee focuses on the statements made by the court
during the rectification hearing, set forth above, in
which it expressed its concern for the welfare of school-
children and women. The acquittee argues that, to the
extent that the court granted the state’s petition because
it presumed that he posed a threat to schoolchildren,
it improperly presumed dangerousness from the under-
lying offense, not on the basis of any evidence that he
acted inappropriately toward one or more school-
children since the 2001 event that led to his arrest.
According to the acquittee, ‘‘[t]he record shows that he
has been clinically stable while consistently taking his
prescribed medicine for approximately a decade. It is
purely speculative to presume that, if for some reason,
[he] discontinued his psychiatric medication regime and
became psychotic, that he would experience the same
florid psychosis and command hallucinations that com-
pelled him to commit the index offense.5 Similarly, the
sequence of events required for the reoccurrence of
such an incident is not only speculative, but also does
not constitute the requisite risk of imminent danger to
schoolchildren because it requires that, at some point,
[he] discontinue his psychiatric medication, thereafter
suffer a decompensation, ultimately become psychotic
and then experience command hallucinations to harm
a child in school.’’ (Emphasis omitted; footnote added.)
The acquittee argues that, to the extent that the court
granted the state’s petition based on a finding that he
posed a danger to women, there was no evidence that,
he ‘‘harmed, threatened, or posed a risk of imminent
danger to a woman.’’ The acquittee acknowledges,
nonetheless, that he has exhibited ‘‘inappropriate’’
behavior toward women during the course of his com-
mitment to the board.
As a preliminary matter, we disagree with the
acquittee that the court improperly presumed danger-
ousness based on the offenses that led to his arrest.
We are persuaded that, to the extent that the court
referred in its decision to these offenses, it did so as
part of a proper consideration of the factual issues
before it. ‘‘In reaching its difficult decision [as to an
acquittee’s dangerousness], the court may and 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.’’ State v. Putnoki, 200 Conn.
208, 221, 510 A.2d 1329 (1986).
The acquittee also argues that it was improper for
the court to focus on the safety of schoolchildren and
women, for there was no evidence that he physically
harmed either a schoolchild or a woman since the time
of his commitment to the board. We note that the state
did not bear the burden of proving that the acquittee
had engaged in any type of physical violence during his
commitment. It was sufficient for the state to prove
by clear and convincing evidence that the acquittee
continues to pose a danger to himself or to others in
the community. The court’s reference to the well-being
of schoolchildren is logically linked to the offenses for
which he was prosecuted, but the court did not suggest,
let alone explicitly state, that the acquittee had engaged
in subsequent acts of violence toward a schoolchild.
We further note that the record does not reflect that,
during his lengthy confinement at Whiting Forensic
Hospital and Connecticut Valley Hospital and, later,
while he was subject to the restrictions on his liberty
that were incident to his temporary leave or conditional
release statuses while under the jurisdiction of the
board, the acquittee has had an opportunity to encoun-
ter a schoolchild.
Moreover, the court’s reference to the well-being of
women logically is related to the records of the
acquittee’s confinement that were submitted in evi-
dence.6 Although those records do not describe acts of
violence committed by the acquittee against women,
they nonetheless reflect that the acquittee’s treatment
history during his commitment includes several
instances in which he intimidated, inappropriately
touched, and made socially inappropriate statements,
often of a sexual nature, to female staff members.7 Such
inappropriate conduct is noted to be a continued con-
cern up through the latest report that the board filed
with the court dated August 27, 2019. Even though there
was no evidence that the acquittee has ever harmed a
woman physically, the fact that there are several
instances of this type of conduct in his treatment
records supports the court’s concern for the safety and
well-being of women. This concern naturally follows
from the court’s obligation under § 17a-593 (c) to con-
sider whether the acquittee’s discharge would pose a
threat to others.
The acquittee argues that a finding that he posed an
imminent threat of physical harm to himself or others
in the community, particularly women, was clearly erro-
neous. This court has observed that, ‘‘[t]he determina-
tion of dangerousness in the context of a mental status
hearing reflects a societal rather than a medical judg-
ment, in which the rights and needs of the defendant
must be balanced against the security interests of soci-
ety. . . . [The court’s] . . . inquiry should focus on
whether the person is a danger to himself or others,
whether he presents . . . the risk of imminent physical
injury to others or self . . . . [T]he ultimate determina-
tion of mental illness and dangerousness is a legal deci-
sion . . . in which the court may and should consider
the entire record available to it, including the defen-
dant’s history of mental illness, his present and past
diagnoses, his past violent behavior, the nature of the
offense for which he was prosecuted, the need for con-
tinued medication and therapy, and the prospects for
supervision if released.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) State v.
Damone, 148 Conn. App. 137, 170–71, 83 A.3d 1227,
cert. denied, 311 Conn. 936, 88 A.3d 550 (2014); see
also State v. March, 265 Conn. 697, 711–12, 830 A.2d
212 (2003).
The acquittee urges us to conclude that a finding that
he posed a risk of imminent physical injury to himself
or others was not supported by the evidence because
such a risk would depend on him, outside of his current
supervised environment, failing to take necessary psy-
chiatric medications, decompensating, becoming psy-
chotic and, ultimately experiencing command halluci-
nations that would lead to him posing such a risk. The
acquittee relies on evidence that he has been clinically
stable while under the board’s supervision, while con-
sistently taking his prescribed medicine for nearly one
decade. We disagree with the acquittee that the court
could not have found that, although under his current
level of board supervision he does not pose an imminent
risk of physical injury to himself or others, it is likely
that he would pose an imminent risk of physical injury
to himself or others if he were to be released from
the board’s supervision entirely. This is because the
evidence before the court logically supported a finding
that, if he were to be released from the board’s supervi-
sion entirely, he would risk relapse once outside of his
present controlled environment and present an immi-
nent danger to himself or to others. See State v.
Damone, supra, 148 Conn. App. 175; see also State v.
Warren, supra, 100 Conn. App. 435 (fact that acquittee
responded adequately to treatment while under board
supervision did not undermine court’s conclusion that
continued commitment was justified); State v. Coor,
87 Conn. App. 717, 727, 733, 867 A.2d 124 (evidence
supported finding of high likelihood that acquittee, who
was in remission while under board’s supervision,
would become dangerous to himself or others if he
stopped taking his medication), cert. denied, 273 Conn.
929, 873 A.2d 998 (2005); State v. Jacob, 69 Conn. App.
666, 685, 798 A.2d 974 (2002) (fact that acquittee had
made progress was due, in part, to his confinement,
supervision and ongoing treatment and did not under-
mine court’s ultimate finding that he posed risk of dan-
ger to himself or others if released from board’s supervi-
sion).
We note that there was evidence before the court
that, following the acquittee’s commitment to the board,
he used physical violence toward other patients, he
challenged another patient to engage in a physical alter-
cation, and he engaged in otherwise threatening behav-
ior toward others. In its 2019 report filed with the court,
the board stated that the acquittee suffers from schizo-
affective disorder, bipolar type; borderline intellectual
functioning; cannabis use disorder; and tobacco use
disorder. The board also stated: ‘‘[The acquittee] has a
history of treatment noncompliance, including periodic
noncompliance with prescribed medication in a hospi-
tal setting. He also has a longstanding pattern of inap-
propriate and impulsive behaviors, which he usually
exhibited when frustrated. For many years, [the
acquittee’s] cognitive limitations, psychiatric illness and
chronic impulsive behaviors repeatedly delayed his
transition to the community. However, he was eventu-
ally able to transition to overnights in the community
in September, 2017, following a concerted effort by his
treatment team to address his poor social skills and
improve his frustration tolerance.’’
The board also stated that the acquittee had been
granted conditional release since its last report to the
court dated July 24, 2018, at which time he was dis-
charged from the hospital and began living in the com-
munity, albeit with significant limitations that were
linked to his ongoing treatment for mental illness. The
board stated, however, that ‘‘[the acquittee’s] experi-
ence living in the community remains limited and he
is stable only because of substantial supervision and
support, including daily monitored medication; a struc-
tured residential program with [forty] hours of man-
dated programming a week; limited travel in his own
custody; in [six] hour increments; and weekly meetings
with an individual therapist and [c]onditional [r]elease
supervisor. Without these mandated safeguards, which
his treaters continue to believe are required to address
his risk, he is likely to become noncompliant with treat-
ment and medication, increasing his risk to himself
and the community. Given that he would no longer be
subject to the safeguards if discharged from the board
and that he was only released from hospital confine-
ment during the past year and had not before that
resided independently in the community since 2001, the
board finds that he continues to require substantial
supervision and that he cannot reside safely in the com-
munity without the board’s continued oversight and
support.’’
The court found that, during his commitment to the
board, the acquittee had made progress and that the
current level of his release into the community is ‘‘sta-
ble’’ only because of mandated safeguards imposed by
the board. The court noted that the acquittee had
expressed his intent, if discharged from the board’s
jurisdiction, to voluntarily comply with mandated safe-
guards. The acquittee, however, is unable to demon-
strate that the court erred in determining, based on the
board’s report filed with the court, that he has not had
a sufficient history of being in a conditional release
status to support a conclusion that he can live in the
community without board oversight. As we discussed
previously in this opinion, it was reasonable for the
court to base its determination not on whether the
acquittee presented a risk of imminent harm to himself
or others while under the board’s supervision, but,
whether, if he were to be released from the board’s
supervision entirely, he posed a risk of imminent harm
to himself or others. The board’s findings squarely
addressed this issue, and they support the court’s deci-
sion.
Having reviewed the evidence presented to the court,
we are persuaded that the court did not err in finding
that the state met its burden, under § 17a-593, of estab-
lishing by clear and convincing evidence that the
acquittee currently is mentally ill and poses a risk of
imminent harm to himself or others. We conclude that
the court’s findings with respect to the danger that the
acquittee continues to pose to the community and the
need for significant and continued safeguards imposed
by the board are not clearly erroneous.
II
Next, the acquittee claims that the court improperly
rejected his claim that § 17a-593, as applied to him,
violates his right to equal protection guaranteed by the
federal constitution. We are not persuaded.
The following additional facts are related to this
claim. As we stated previously in this opinion, in con-
nection with his motion to dismiss the state’s petition
to extend his commitment, the acquittee argued that
his right to equal protection under the federal constitu-
tion was violated by the recommitment procedure to
which he is subjected under § 17a-593, which implicates
his right to individual liberty. He argued that the recom-
mitment procedure that governs acquittees under § 17a-
593 is applied more conservatively than the nominally
identical commitment procedure that applies to civil
committees under § 17a-515, that acquittees are simi-
larly situated to civilly committed inmates for purposes
of equal protection analysis, that an intermediate level
of scrutiny should be utilized in an equal protection
analysis of § 17a-593, and that § 17a-593 cannot with-
stand such scrutiny. The court, in an oral ruling,
declined the acquittee’s invitation to apply an intermedi-
ate standard of scrutiny and denied his motion to dis-
miss.
On appeal, the acquittee does not argue that § 17a-593
is facially discriminatory, but that it is discriminatory as
applied to him. The acquittee argues that he is similarly
situated to civilly committed inmates because his maxi-
mum term of commitment has expired, he has been
discharged and afforded conditional release status, and
he has largely demonstrated sustained progress in his
mental health treatment. The state disagrees that the
acquittee is similarly situated to civilly committed
inmates. The state argues that there is a nexus between
the acquittee’s mental illness and the violent criminal
conduct in which he engaged at a public school. In
contrast, the state argues, civilly committed inmates
have a prior felony or misdemeanor conviction, but
there need not be a connection between the criminal
conduct underlying that conviction and the mental ill-
ness underlying their civil commitment. Although the
acquittee focuses his argument on inmates who have
been civilly committed, the state also notes that the
civil commitment scheme applies to both inmates and
civilians and, thus, civilly committed persons need not
have committed any crime nor have been incarcerated.
We set forth our standard of review and relevant legal
principles. A lower court’s ruling on an equal protection
claim presents this court with an issue of law to which
we afford plenary review. See, e.g., State v. Yury G.,
207 Conn. App. 686, 695, 262 A.3d 981, cert. denied, 340
Conn. 909, 264 A.3d 95 (2021). ‘‘[T]he concept of equal
protection [under the federal constitution] has been
traditionally viewed as requiring the uniform treatment
of persons standing in the same relation to the govern-
mental action questioned or challenged. . . . Con-
versely, the equal protection clause places no restric-
tions on the state’s authority to treat dissimilar persons
in a dissimilar manner. . . . Thus, [t]o implicate the
equal protection [clause] . . . it is necessary that the
state statute . . . in question, either on its face or in
practice, treat persons standing in the same relation to
it differently. . . . [Accordingly], the analytical predi-
cate [of an equal protection claim] is a determination
of who are the persons [purporting to be] similarly
situated. . . . The similarly situated inquiry focuses on
whether the [challenger is] similarly situated to another
group for purposes of the challenged government
action. . . . Thus, [t]his initial inquiry is not whether
persons are similarly situated for all purposes, but
whether they are similarly situated for purposes of the
law challenged. . . . Entities are situated similarly in
all relevant aspects if a prudent person, looking objec-
tively at the incidents, would [deem] them roughly
equivalent and the protagonists similarly situated. Much
as in the lawyer’s art of distinguishing cases, the rele-
vant aspects are those factual elements which deter-
mine whether reasoned analogy supports, or demands,
a like result. Exact correlation is neither likely nor nec-
essary, but the cases must be fair congeners. In other
words, apples should be compared to apples. . . .
‘‘When a court analyzes a law under the equal protec-
tion clause, it must employ a particular standard of
review. The most deferential standard is rational basis
review, which applies in areas of social and economic
policy that neither proceed along suspect lines nor
infringe fundamental constitutional rights . . . .
Rational basis review demands only that the challenged
classification be rationally related to a legitimate gov-
ernment interest. . . . A party challenging a law under
rational basis review bears the burden of proving that
the law’s class-based distinctions are wholly irratio-
nal. . . .
‘‘The least deferential standard of review is strict
scrutiny, which applies both to laws that discriminate
on the basis of a person’s membership in a suspect
class and to laws that burden a person’s exercise of a
fundamental right. . . . Under strict scrutiny, the state
bears the burden of demonstrating that the challenged
discriminatory means are necessary to the achievement
of a compelling state interest. . . .
‘‘Lying between the extremes of strict scrutiny and
rational basis review is intermediate scrutiny, which
typically applies to discriminatory classifications based
on gender or illegitimacy. . . . Intermediate scrutiny
also sometimes applies to laws that affect an important,
though not constitutional, right. . . . Under intermedi-
ate scrutiny, the state bears the burden of establishing
that the challenged discriminatory means are substan-
tially related to an important governmental interest.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) State v. Dyous, supra, 307 Conn. 315–
18.
We begin by addressing whether the acquittee has
established the necessary premise for his equal protec-
tion claim, that he is similarly situated to civilly commit-
ted inmates. Our decisional law has referred to the
initial inquiry that the entities at issue be similarly situ-
ated as ‘‘[an] analytical predicate’’ to an equal protection
claim; (internal quotation marks omitted) id., 315; as
well as ‘‘[a] threshold issue’’ to be considered in evaluat-
ing such a claim. Keane v. Fischetti, 300 Conn. 395,
403, 13 A.3d 1089 (2011). This is because, if the entities
at issue are not similarly situated in the first instance,
the claim at issue does not truly implicate the equal
protection clause, and it becomes unnecessary for the
court to decide the constitutional issue of whether the
challenged state action violates the equal protection
clause. See Stuart v. Commissioner of Correction, 266
Conn. 596, 602, 834 A.2d 52 (2003).
As the parties observe, in prior opinions, both this
court and our Supreme Court have addressed constitu-
tional challenges to § 17a-593. Several of these cases
are instructive. In State v. Metz, 230 Conn. 400, 402,
645 A.2d 965 (1994), our Supreme Court addressed a
challenge, brought on due process and equal protection
grounds, with respect to which party bears the burden
of proof under § 17-593 (c). Our Supreme Court con-
cluded that the statute must be construed such that the
state bears the burden of proving ‘‘the need for a period
of continued commitment of an acquittee after the expi-
ration of the maximum term specified by [General Stat-
utes] § 17a-582 (e) (1) (A).’’ Id., 408. In its analysis, our
Supreme Court observed that ‘‘[f]ederal law has . . .
recognized that insanity acquittees are a special class
that should be treated differently from other candidates
for commitment . . . . Thus, when a criminal defen-
dant establishes by a preponderance of the evidence
that he is not guilty of a crime by reason of insanity, the
[c]onstitution permits the [g]overnment, on the basis
of the insanity judgment, to confine him to a mental
institution until such time as he has regained his sanity
or is no longer a danger to himself or society. . . . For
an insanity acquittee, the state may adopt procedures
that presume the acquittee’s continued dangerousness
and that envisage a diminished risk that a person will be
committed who is not mentally ill.’’ (Citations omitted;
internal quotation marks omitted.) Id., 414.
Our Supreme Court in Metz also observed that dispar-
ities in laws that distinguish between civilly committed
persons and acquittees are constitutionally justified
‘‘because of the unique status of persons acquitted by
reason of insanity. . . . We have acknowledged that
the obvious difference between insanity acquittees and
other persons facing commitment is the fact that the
former have been found, beyond a reasonable doubt,
to have committed a criminal act. . . . While the
acquittee therefore may be deprived erroneously of his
liberty in the commitment process, the liberty he loses
is likely to be liberty which society mistakenly had
permitted him to retain in the criminal process. . . .
‘‘In contrast to an acquittee’s differentiated status at
an initial commitment hearing, our state law has, for
certain purposes, likened acquittees to prisoners who
have been transferred to a mental hospital during the
pendency of their jail sentence. We have noted that
both classes of hospital inmates are being deprived of
their liberty primarily for the protection of society; both
have the same financial resources; and both have the
same need for treatment. . . . Thus, this court has held
that equal protection of the laws mandates that an
acquittee, like a prisoner under our statutes, should not
bear the costs of his commitment.’’ (Citations omitted;
internal quotation marks omitted.) Id., 417.
In Metz, the court also stated that, ‘‘[a]fter the expira-
tion of a maximum term of confinement, it is difficult
to find a constitutional justification for a categorical
distinction between an insanity acquittee and an incar-
cerated prisoner who was transferred to a mental hospi-
tal while he was serving his criminal sentence. In each
instance, the purpose of commitment is to treat the
individual’s mental illness and protect him and society
from his potential dangerousness . . . . In each
instance, furthermore, the qualitative character of the
liberty deprivation is the same, irrespective of the fact
that the Superior Court rather that the Probate Court
retains jurisdiction over the propriety of an acquittee’s
continued commitment.’’ (Citations omitted; internal
quotation marks omitted.) Id., 424–25.
In State v. Long, supra, 268 Conn. 510, the state
appealed from a judgment of dismissal rendered by
the trial court after it granted an acquittee’s motion to
dismiss a petition for an order of continued commit-
ment of the acquittee pursuant to § 17a-593 (c). In Long,
the trial court concluded that § 17a-593 (c) violated the
acquittee’s right to equal protection under the federal
constitution in that ‘‘it treats acquittees . . . differently
from convicted prisoners who subsequently are civilly
committed to a mental hospital at some point after
they have been incarcerated . . . .’’ Id., 514. Beyond
challenging the acquittee’s standing to raise an equal
protection challenge, the state argued on appeal that
the statute did not violate his equal protection rights
because it discriminated against persons with psychiat-
ric or intellectual disabilities on the basis of their proven
criminal acts, not their mental disability, and, thus, it
survives rational basis scrutiny. Id., 528. In analyzing
the equal protection claim, our Supreme Court noted
that it ‘‘assume[d] arguendo, without deciding, that
acquittees are similarly situated to civilly committed
inmates.’’ Id., 535. The court thereafter concluded that
§ 17a-593 (c) survived rational basis review, reversed
the judgment of the trial court, and remanded the case
to the trial court for further proceedings. Id., 537, 541.
In State v. Lindo, 110 Conn. App. 418, 419, 955 A.2d
576, cert. denied, 289 Conn. 948, 960 A.2d 1038 (2008),
an acquittee appealed from a trial court’s judgment
granting the state’s petition for an order of continued
commitment. The acquittee claimed that § 17a-593 (c),
as applied to him, violated his right to equal protection
under the federal constitution because, ‘‘at the time of
the recommitment hearing . . . he was an inmate and
therefore should have been afforded the more stringent
procedural protections applicable when the state seeks
to commit mentally ill prisoners pursuant to [the civil
commitment procedure made applicable to inmates]
pursuant to . . . § 17a-515.’’ Id., 422. In analyzing and
ultimately rejecting the merits of the acquittee’s equal
protection claim, this court, following Long, assumed,
without deciding, that acquittees are similarly situated
to mentally ill inmates. Id., 426.
Finally, in State v. Dyous, supra, 307 Conn. 302, an
acquittee appealed from a trial court’s judgment grant-
ing the state’s petition for an order of continued commit-
ment pursuant to § 17a-593 (c). The acquittee claimed
that § 17a-593, both on its face and as applied to him,
violated his right to equal protection under the federal
constitution; id., 315; because it subjects ‘‘insanity
acquittees to a recommitment procedure that imposes
greater burdens on individual liberty than does the pro-
cedure for obtaining an order of civil commitment set
forth in § 17a-498, which applies to similarly situated
civilly committed inmates, [and that the disparate treat-
ment of these two classes of inmates] does not substan-
tially relate to the achievement of an important govern-
mental interest.’’ Id., 303.
Our Supreme Court in Dyous first addressed the
acquittee’s burden of demonstrating that he and other
insanity acquittees who face the prospect of continued
commitment are similarly situated to civilly committed
inmates. The court reasoned: ‘‘Both groups have been
proven beyond a reasonable doubt to have engaged in
criminal conduct, both are currently mentally ill, both
require treatment, and both present a potential danger
to society, yet civilly committed inmates are subject to
the statutory scheme governing civil commitment set
forth in § 17a-498 et seq., whereas insanity acquittees
who have reached the end of their terms of commitment
are subject to the wholly separate statutory scheme
including § 17a-593 (c) and related provisions. Although
we acknowledge that there is some persuasive force to
the state’s contention that the two groups actually are
not similarly situated—only insanity acquittees neces-
sarily were mentally ill at the time of their prior criminal
conduct, for example, and only insanity acquittees were
proven to have engaged in such conduct because they
were mentally ill—we assume, arguendo, that the two
groups are similarly situated and that § 17a-593 accord-
ingly may be analyzed under the equal protection
clause.’’ (Emphasis altered.) Id., 316. Although it chose
not to resolve the issue of whether insanity acquittees
and civilly committed inmates are similarly situated
for equal protection purposes, the court nonetheless
observed that ‘‘the issue is . . . [not] clear cut in light
of the important features that the two groups have in
common.’’8 Id., 316 n.11.
The court also stated that, ‘‘to the extent that . . .
Metz stands for the . . . proposition that, after the
expiration of a maximum term of commitment, the
equal protection clause requires the state to treat an
insanity acquittee exactly as it would treat a civilly
committed inmate, we reject that proposition as
unfounded. However preferable it may be as a matter of
policy for the state to treat insanity acquittees, following
the expiration of their maximum term of commitment,
in exactly the same manner as it treats civilly committed
inmates . . . the equal protection clause simply does
not require that the state treat these two groups identi-
cally. The special public safety concern that is raised
by the prospective release of a person like [the acquittee
in Dyous] does not evaporate the moment such a person
reaches the end of his maximum term of commitment.
An acquittee’s maximum term of commitment bears
no necessary relation to public safety: the maximum
allowable term of commitment is equal to the maximum
sentence that could have been imposed if the acquittee
had been convicted of the offense . . . and [t]here sim-
ply is no necessary correlation between severity of the
offense and the length of time necessary for recovery.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Id., 331–32 n.18. The court in
Dyous went on to conclude, however, that § 17a-593
was constitutional as applied to the acquittee and, con-
sequently, that the statute was constitutional on its face.
Id., 334.
Neither party suggests that we are bound by prece-
dent to presume, as courts in prior cases have, that
the acquittee is similarly situated to civilly committed
inmates. Rather, we conclude that he is not. ‘‘The [e]qual
[p]rotection [c]lause of the [f]ourteenth [a]mendment to
the United States [c]onstitution is essentially a direction
that all persons similarly situated should be treated
alike.’’ (Internal quotation marks omitted.) Thomas v.
West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999),
cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed.
2d 99 (2000). As we have discussed previously in this
opinion, in discussing what constitutes similarly situ-
ated entities, our Supreme Court has stated that entities
need not be identical to be similarly situated, but they
must be roughly equivalent. State v. Dyous, supra, 307
Conn. 316, citing Kelo v. New London, 268 Conn. 1, 104
n.98, 843 A.2d 500 (2004), aff’d, 545 U.S. 469, 125 S. Ct.
2655, 162 L. Ed. 2d 439 (2005).
Before this court, the acquittee argues that, in Dyous,
our Supreme Court ‘‘rejected’’ the argument that
acquittees that share his characteristics are not simi-
larly situated to civilly committed inmates. As our previ-
ous discussion of Dyous unambiguously reflects, how-
ever, the court did not reach such a conclusion; it chose
to presume, without deciding, that the groups in Dyous
were similarly situated. See State v. Dyous, supra, 307
Conn. 316. In an attempt to demonstrate that he is
similarly situated to civilly committed inmates, the
acquittee observes, accurately, that the state seeks his
commitment beyond his maximum allowable term of
commitment, he has ‘‘largely demonstrated sustained
progress’’ in his treatment and, in fact, has been
afforded conditional release status. He also relies on
language from Dyous stating that acquittees as a class,
like civilly committed inmates, have been proven
beyond a reasonable doubt to have engaged in criminal
conduct, are mentally ill, require treatment, and pose
a potential danger to society. See State v. Dyous,
supra, 316.
We are persuaded by the state’s arguments that the
acquittee is not similarly situated to civilly committed
inmates. As the state correctly observes, for the
acquittee to have prevailed at his criminal trial on his
insanity defense, he had to prove that there was a nexus
between his mental illness and his violent criminal con-
duct. This nexus existed either in terms of his being
unable to appreciate the wrongfulness of his conduct
or in terms of his being unable to control his conduct.
Section 53a-13 (a) provides: ‘‘In any prosecution for
an offense, it shall be an affirmative defense that the
defendant, at the time the defendant committed the
proscribed act or acts, lacked substantial capacity, as
a result of mental disease or defect, either to appreciate
the wrongfulness of his conduct or to control his con-
duct within the requirements of the law.’’ In the civil
commitment process, such a proven correlation
between mental illness and criminal conduct simply
need not exist.
The acquittee does not satisfactorily address the dif-
ference in the circumstances that, on the one hand,
gave rise to his commitment as a person who committed
a violent offense due to mental illness and, on the other
hand, gave rise to the commitment of an inmate who is
civilly committed pursuant to § 17a-515 for a psychiatric
disability. More importantly, we are not persuaded that,
in light of the continued danger that he poses to others
due to his mental illness; see part I of this opinion; his
progress in treatment or the fact that he has reached
the end of his maximum term of confinement should
lead us to now conclude that he is similarly situated to
inmates whose mental illness has not manifested in
criminal conduct. At the time of his criminal trial, it
was proven that the acquittee’s mental disease or defect
caused him to engage in acts that constituted criminal
offenses. In contrast, a civilly committed inmate has
been proven to suffer from a psychiatric disability,
regardless of whether his or her mental illness has mani-
fested cognitive and/or volitional effects that resulted
in the commission of criminal conduct.
Simply put, the acquittee’s focus on the fact that he
has reached his maximum term of commitment and
the sustained progress in his treatment leading to his
conditional release status does not alter the significance
of the circumstances that led to his commitment, let
alone undermine the fact that his mental illness contin-
ues to pose a danger to society. We recognize, as our
Supreme Court has observed, that the issue of whether
acquittees, as a general class, and civilly committed
inmates are similarly situated for equal protection pur-
poses is not necessarily clear-cut. Yet, despite the fact
that the acquittee and civilly committed inmates
undoubtedly share other characteristics, the significant
difference in the circumstances giving rise to the
acquittee’s commitment leads us to conclude that he
is dissimilar to civilly committed inmates for equal pro-
tection purposes. Accordingly, we reject the acquittee’s
equal protection claim.
The judgment is affirmed.
In this opinion CRADLE, J., concurred.
1
Later, the board determined that, during the incident at issue, the
acquittee was responding to ‘‘command auditory hallucinations that told
him to assault a minor.’’
2
Pursuant to § 17a-515, General Statutes § 17a-498, which codifies the
involuntary civil commitment procedure, is made applicable to any person
in the custody of the Commissioner of Correction. Our Supreme Court has
explained that ‘‘[t]he procedure for extending an insanity acquittee’s term
of commitment to the [board] imposes greater burdens on individual liberty
than does the civil commitment procedure applicable to civilly committed
inmates, that is, mentally ill, convicted defendants who were transferred,
pursuant to §§ 17a-498 and 17a-515, to a psychiatric facility while they were
serving their sentences, and whom the state seeks to commit to a similar
institution after their sentences end. Among other disparities between the
two commitment schemes, the procedure for recommitting insanity
acquittees directs the finder of fact to ‘[consider] that its primary concern
is the protection of society’; General Statutes [Rev. to 2011] § 17a-593 (g);
whereas the procedure for recommitting civilly committed inmates directs
the finder of fact to ‘[consider] whether . . . a less restrictive placement
is available . . . .’ General Statutes § 17a-498 (c).’’ (Footnotes omitted.)
State v. Dyous, 307 Conn. 299, 301, 53 A.3d 153 (2012).
3
The state represents, and the acquittee does not dispute, that, on October
18, 2021, the court, with the agreement of the parties, extended the
acquittee’s commitment until March 21, 2023.
4
General Statutes § 17a-593 provides in relevant part: ‘‘(c) If reasonable
cause exists to believe that the acquittee remains a person with psychiatric
disabilities or a person with intellectual disability to the extent that his
discharge at the expiration of his maximum term of commitment would
constitute a danger to himself or others, the state’s attorney, at least one
hundred thirty-five days prior to such expiration, may petition the court for
an order of continued commitment of the acquittee.
‘‘(d) The court shall forward any application for discharge received from
the acquittee and any petition for continued commitment of the acquittee
to the board. The board shall, within ninety days of its receipt of the applica-
tion 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 dis-
charged. The board may hold a hearing or take other action appropriate to
assist it in preparing its report.
‘‘(e) Within ten days of receipt of a recommendation for discharge filed
by the board under subsection (a) of this section or 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 exami-
nation 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. To facilitate examinations of the acquittee, the
court may order him placed in the temporary custody of any hospital for
psychiatric disabilities or other suitable facility or placed with the Commis-
sioner of Developmental Services.
‘‘(f) After receipt of the board’s report and any separate examination
reports, the court shall promptly commence a hearing on the recommenda-
tion or application for discharge or petition for continued commitment. At
the hearing, the acquittee shall have the burden of proving by a preponder-
ance of the evidence that the acquittee is a person who should be discharged.
‘‘(g) 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.’’
The legislature amended subsection (g) of § 17a-593 since the events
underlying the present appeal to add the phrase ‘‘and its secondary concern
is the safety and well-being of the acquittee.’’ See Public Acts 2022, No. 22-
45, § 5. All references herein to § 17a-593 are to the current revision of the
statute unless otherwise indicated.
5
The psychiatric profession refers to the offenses that led to an acquittee’s
arrest as ‘‘index offenses.’’ See, e.g., State v. Torell, Superior Court, judicial
district of New Haven, Docket No. XX-XXXXXXX (February 21, 2018).
6
The court had before it reports prepared by the board dated January
16, 2013, July 2, 2014, January 29, 2016, July 24, 2018, and August 27, 2019.
The court also had before it progress and risk assessment reports prepared
for the board by a licensed clinical social worker dated January 24, 2019,
and July 3, 2019, as well as conditional release progress reports prepared
for the board by the acquittee’s clinical release supervisor dated May 2,
2019, August 1, 2019, and November 1, 2019. Also in evidence were transcripts
of proceedings before the board on December 7, 2012, May 16, 2014, January
8, 2016, June 2, 2017, September 15, 2017, and June 29, 2018.
7
For example, there was evidence before the court that, on July 18, 2016,
the acquittee approached a female staff member in a restricted storage room
secured by a door that automatically closed. The staff member instructed
the acquittee to back out of the room. Although the acquittee complied, he
nonetheless remained close to the door, causing the staff member to feel
threatened or barricaded in the room. Later, the acquittee remarked to the
female staff member that he was ‘‘out to get’’ her.
There was evidence that, in 2012, the acquittee was ‘‘occasionally inappro-
priate with female staff [members].’’ Specifically, he had referred to some
of the female staff as ‘‘baby’’ and had requested hugs from female staff mem-
bers.
The board’s report filed with the court dated January 16, 2013, reflects that,
in August, 2009, ‘‘[the acquittee] displayed socially inappropriate behavior,
touching staff and making inappropriate comments to female staff.’’ The
report also noted that, in August, 2011, the acquittee ‘‘episodically lost his
privileges due to inappropriate, often impulsive and self-defeating behaviors,
including not respecting other people’s boundaries, making inappropriate
statements towards staff, and engaging in disrespectful and occasionally
threatening behaviors toward others.’’ The board found that the acquittee
‘‘continues to exhibit inappropriate social behavior, preventing his transition
to the community. Though he is clinically stable with only intermittent
episodes of threatening behavior in his highly structured setting, he has yet
to demonstrate clinical stability and behavioral control outside that setting.’’
The board’s report filed with the court dated July 2, 2014, reflected that, in
December, 2013, the acquittee’s temporary leave privileges were suspended
after he had exhibited ‘‘inappropriate and impulsive behavior’’ while in the
community and he insisted on returning to hospital care.
In the latest report filed with the court, dated August 27, 2019, the board
noted that the acquittee ‘‘has a longstanding pattern of inappropriate and
impulsive behaviors, which he usually exhibited when frustrated.’’ In particu-
lar, it is noted that the acquittee has a history of ‘‘inappropriate’’ behavior
with women.
8
The court’s observation was made in response to a concurring opinion
in which a concurring justice stated: ‘‘Although this court often assumes
that two groups are similarly situated for the purpose of conducting a
more comprehensive equal protection analysis . . . I believe that insanity
acquittees and those who are civilly committed are distinguishable on such
a fundamental level that there is no reason to apply the presumption in the
present case. As this court explained in Long, ‘[w]hat differentiates these
two groups for the purposes of recommitment procedures is the acquittee’s
proven criminal offense, which has been adjudicated to be the product of
mental illness. A verdict of not guilty by reason of mental disease or defect
establishes two facts: (1) the person committed an act that constitutes a
criminal offense; and (2) he committed the act because of mental illness.
. . . Thus, unlike a civilly committed inmate, an acquittee has proven to
the fact finder that his mental disease or defect caused him to commit a
crime, thereby establishing a legal nexus between the acquittee’s mental
illness and the criminal act.’ . . . State v. Long, supra, 268 Conn. 539–40.’’
(Citations omitted.) State v. Dyous, supra, 307 Conn. 337–38 (Zarella, J.,
concurring). In his concurrence, the justice further stated: ‘‘The discharge
of an insanity acquittee, whose status indicates that he or she has been
declared dangerous to society due to the commission of a criminal act,
raises the specter that the danger to society will recur if the mental disease
recurs, which is not the case with a civilly committed inmate whose mental
disease or defect was not accompanied by a criminal act. Accordingly,
although insanity acquittees and civilly committed inmates share certain
other characteristics, I would conclude that they cannot be considered
similarly situated for the purpose of an equal protection challenge to § 17a-
593.’’ (Footnote omitted.) Id., 339 (Zarella, J., concurring).