State v. Cusson

Decision Date25 January 2022
Docket NumberAC 43352
Citation210 Conn.App. 130,269 A.3d 828
Parties STATE of Connecticut v. Mark CUSSON
CourtConnecticut Court of Appeals

Norman A. Pattis, Bethany, with whom, on the brief, was Kevin Smith, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael A. Gailor, state's attorney, and Jeffrey Doskos, supervisory assistant state's attorney, for the appellee (state).

Prescott, Cradle and DiPentima, Js.

CRADLE, J.

The defendant, Mark Cusson, appeals from the judgment of conviction, rendered after a jury trial, of three counts of cruelty to persons in violation of General Statutes § 53-20 (a) (1), and five counts of disorderly conduct in violation of General Statutes § 53a-182 (a) (2). On appeal, the defendant claims that (1) the trial court violated his sixth amendment right to present a defense by failing to take adequate procedural measures before ruling that the victim was incompetent to testify, (2) the trial court violated his due process right to offer witness testimony by failing to sanction the prosecution for intimidating potential defense witnesses from testifying at trial, and (3) the state engaged in prosecutorial impropriety by alerting the trial court as to potential fifth amendment concerns with a defense witness’ expected testimony during a pretrial hearing, effectively precluding the witness from testifying and denying the defendant his due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. From January, 1998, until March, 2017, the defendant was employed as a forensic nurse at Whiting Forensic Hospital (Whiting), a maximum security psychiatric facility in Middletown operated by the Department of Mental Health and Addiction Services (department). At the time of the March, 2017 incidents that led to his prosecution, the defendant held the title of forensic head nurse and was assigned to Unit 6 of the facility.1

The victim, William Shehadi, was committed to Whiting in 1995 after being found not guilty, by reason of mental disease or defect, of killing his father and seriously injuring his mother. Although the victim's initial commitment was for a period of ten years, his term of commitment has been subject to review and extended every two years by the Psychiatric Security Review Board (board).2 He was assigned to Unit 6 from 2002 until the March, 2017 incidents that led to the defendant's arrest, at which point the victim was transferred to a different unit.

The victim suffers from several diagnosed mental health illnesses, including schizoaffective disorder, bipolar type; autism spectrum disorder; and a personality disorder with borderline narcissistic and antisocial traits. He is physically aggressive and tends to make racially hostile and sexually inappropriate statements to others. The victim's mental health disorder also causes sudden and significant mood swings, which render him easily agitated and prone to violent outbursts. This behavior has caused Whiting staff to frequently place the victim in physical restraints. On several occasions, he has caused injury to hospital staff, other patients, and himself.

Due to the challenges posed by the victim's condition, Whiting placed him under special "two-to-one" observation orders.3 The hospital also installed a continuous video feed in the victim's room to more closely monitor his behavior without the physical intrusion of staff.4 Between March 3 and 17, 2017, the video camera in the victim's room recorded several incidents that led to the defendant's arrest. Those recordings appeared to depict the defendant, and other Whiting staff, physically abusing and demeaning the victim. Specifically, the video recordings show the defendant repeatedly kicking the victim as he lay in bed and kicking the victim off the bed and onto the floor. On several occasions, the defendant restrained the victim by wrapping his legs around the victim's head. The defendant was also shown pouring a cup of liquid on the victim and draping a mop on top of the victim's head. In one instance, the defendant positioned his buttocks near the victim's face and held that position for several seconds. In another, the defendant climbed on top of and straddled the victim, placing his groin near the victim's face, and appeared to thrust his crotch in the victim's direction. During these incidents, other Whiting staff were present in the victim's room and observed the defendant's actions. These interactions and uses of physical restraint were not recorded in Whiting's observation logs.5

The department and Whiting administration learned of the defendant's conduct in late March, 2017.6 The department then informed state law enforcement and launched an administrative investigation.7 The defendant was subsequently arrested and charged with eight counts of cruelty to persons and eight counts of disorderly conduct.

A jury trial commenced on March 25, 2019. At trial, the defendant testified that his conduct was intended to be therapeutic rather than abusive. He claimed that he acted in response to the victim's growing agitation, that the victim was soothed by human touch, and that the use of leg restraints was an attempt to perform a swaddling technique meant to comfort the victim. On cross-examination, the defendant admitted that these techniques were neither part of the victim's treatment plan nor approved by Whiting. The defendant also stated that he failed to document the use of physical restraint, which is required under Whiting policy.

The jury subsequently found the defendant guilty of three counts of cruelty to persons and five counts of disorderly conduct. On August 14, 2019, the trial court, Suarez, J., sentenced the defendant to fifteen years of incarceration, execution suspended after five years, followed by three years of probation with special conditions. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the trial court violated his sixth amendment right to present a defense8 by ruling that the victim was incompetent to testify at the defendant's trial. Specifically, the defendant argues that the court abused its discretion by (1) failing, as a matter of procedure, to conduct its own examination of the victim before making a competency determination, and (2) denying the defendant's motion to order an independent psychiatric evaluation of the victim. We disagree with the defendant's arguments and will address them in turn.

The following additional facts and procedural history are relevant to the resolution of this claim. On February 26, 2019, the state filed a motion in limine, pursuant to § 6-3 of the Connecticut Code of Evidence, seeking to preclude the victim's testimony on the basis that "[he] suffers from a serious mental illness, which makes him incapable of understanding the duty to tell the truth and incapable of sensing, remembering, or expressing himself."9 In support of its motion, the state sought to offer expert testimony from Shana Berger, the principal psychiatrist for the department and, at the time of trial, the victim's treating psychiatrist at Whiting. On March 6, 2019, the defendant filed an objection to the state's motion, arguing that Dr. Berger's testimony alone was legally insufficient to preclude the victim's testimony on the basis of incompetence.

On March 13, 2019, the trial court held a pretrial hearing on the state's motion in limine. At the hearing, the state called Dr. Berger to testify as to the victim's ability to receive and remember sensory impressions, his capacity for truthfulness, and his ability to express himself in ways that others can understand. Dr. Berger testified that she became a board certified psychiatrist in 2011. She stated that she was currently serving as the victim's treating psychiatrist and had been the victim's treating psychiatrist since March 22, 2017.10 She clarified that her treatment plan involved personally observing and conversing with the victim "every weekday and [on] some weekends." Those interactions lasted anywhere from a few minutes to one-half hour and occurred multiple times throughout the day.

Dr. Berger testified that the victim was diagnosed with schizoaffective disorder, bipolar type; autism spectrum disorder; and a personality disorder with borderline antisocial and narcissistic traits, and had been diagnosed with other mental afflictions in the past. Dr. Berger explained that these disorders have resulted in several cognitive and communicative problems. She also clarified that these issues are rooted in the victim's psychosis and that his condition has been worsening over time.

Dr. Berger explained further that the victim has poor cognitive memory, has trouble retaining information, and is unable to accurately "observe what's going on around him and report it back in a factual manner." She testified that he is not oriented to time as are typical individuals, and he experiences difficulty understanding temporal concepts like days and months. As a result, the victim is unable to narrate events or recall past experiences in a rational way. Although he is occasionally capable of expressing preferences, his answers to questions tend to be illogical and disjointed. When the victim was asked specifically about the March, 2017 incidents at issue, Dr. Berger testified that the victim "didn't respond ... wasn't able to answer questions ... ignored the question or answered in a manner that didn't make sense."

Dr. Berger also revealed that the victim has been diagnosed with tardive dyskinesia, a neurological disorder that affects the musculature of his tongue and mouth.11 Consequently, the victim has difficulty expressing himself when speaking. Dr. Berger estimated that others can only understand "maybe 30 to 40 percent of what he says."

Dr. Berger asserted...

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2 cases
  • State v. Ghant
    • United States
    • Connecticut Court of Appeals
    • May 31, 2022
    ...trial. Because we conclude that these claims are not adequately briefed, we decline to review them. See, e.g., State v. Cusson , 210 Conn. App. 130, 137 n.8, 269 A.3d 828 (2022) ("It is well established that the appellate courts of this state are not obligated to consider issues that are no......
  • State v. Cusson
    • United States
    • Connecticut Supreme Court
    • May 10, 2022
    ...assistant state's attorney, in opposition.The defendant's petition for certification to appeal from the Appellate Court, 210 Conn. App. 130, 269 A.3d 828 (2022), is denied. ALEXANDER, J., did not participate in the consideration of or decision on this ...

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