State v. Cuvelier

• Decision Date: 02 May 1978
• Citation: 175 Conn. 100,394 A.2d 185
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. James CUVELIER.

Page 185

394 A.2d 185

175 Conn. 100

STATE of Connecticut v. James CUVELIER.

Supreme Court of Connecticut.

Argued Feb. 9, 1978.

Decided May 2, 1978.

David Schulz, law student intern, with whom were Mary F. Keller, New Haven, and, on the brief, Dennis E. Curtis and Stephen Wizner, New Haven, for appellant (defendant).

George D. Stoughton, State's Atty., for appellee (state).

Before COTTER, LOISELLE, BOGDANSKI, LONGO and HEALEY, JJ.

COTTER, Associate Justice.

The defendant, in a seven-count information, was charged with conspiracy to commit burglary in the third degree, conspiracy to commit robbery in the first degree, conspiracy to commit assault in the first degree, injury or risk of injury to a child, and deviate sexual intercourse in the first degree. On March 6, 1974, after a trial by the court on the sixth count of the information, ¹ the defendant was adjudged not guilty by reason of insanity and, pursuant to § 53a-47(a)(1) of the General Statutes, ordered committed to the custody of the commissioner of mental health for a period not to exceed ninety days for an examination to determine his mental condition. Pursuant to the statute, ² the superintendent of Whiting Forensic Institute subsequently filed a report with the court and, on June 6, 1974, the court found that the defendant was mentally ill to the extent that his release would constitute a danger to himself and to others and therefore ordered that he remain in the custody of the commissioner of mental health for a term not to exceed ten years. The state's attorney, therefore, declined to prosecute the defendant on the remaining counts of the information.

On March 23, 1976, the defendant filed a motion to revoke the June 6, 1974 order of commitment on the ground that the defendant "is not mentally ill to the extent that his release would constitute a danger to himself or others" as provided for in General Statutes § 53a-47. Following a hearing, the defendant's motion, upon order of the court, was denied on December 2, 1976, and he has appealed.

The defendant has assigned error in the trial court's refusal to find certain facts, in finding facts without evidence, and in reaching conclusions unsupported by facts set forth in the finding. Since the facts which the defendant seeks to have added to the finding are not admitted or undisputed material facts which would affect the result in this case, no corrections are warranted. Practice Book § 628(a); Rushchak v. West Haven, 167 Conn. 564, 566, 356 A.2d 104. The defendant's remaining assignments of error, directed at the finding, are disposed of by our determination of the defendant's primary claim that the trial court improperly relied upon statutory periodic review reports not formally introduced into evidence and the testimony of a psychiatrist, which the defendant claims was erroneously based upon past medical history.

At the time of the hearing on his motion, the defendant was confined at Whiting Forensic Institute, although he had previously been a patient at both Connecticut Valley Hospital and Norwich Hospital. Dr. Hans Langhammer, a psychiatrist at Norwich Hospital, to whose qualifications the parties stipulated, was called as a witness by the state to testify as to the defendant's current mental condition and was the sole witness to testify at the hearing of December 2, 1976. Dr. Langhammer, who was familiar with the defendant and his past history, based his testimony on a personal interview with the defendant in November, 1976, and on a review of the defendant's record at Whiting, which included reports compiled in the six-month interval immediately preceding the hearing. The witness stated that, although the defendant had not threatened the safety or well-being of others during the past six months and had displayed no overt thought disorder during the interview with the psychiatrist in November, the defendant's preoccupation with self-destruction had been noted by physicians in September, 1976, and he had recently been diagnosed as having an organic brain syndrome, the symptoms of which include a short frustration span and explosive outbursts. Dr. Langhammer also noted that on one or more occasions the defendant consumed alcohol or brought it back to Connecticut Valley Hospital when he was participating in a work release program there, and that preliminary evaluation notes at that institution indicated that alcohol or illicit drugs could cause the defendant to act unpredictably.

On the basis of his expert evaluation of voluminous records regarding the defendant's past history and on the basis of his own observations, Dr. Langhammer stated that, in his opinion, the release of the defendant at that time would and could constitute a danger to the defendant and to others due to mental illness. He concluded that, in view of the defendant's history of unpredictable behavior, his failure to exhibit any overt signs of dangerousness in the past six months is not alone sufficient to warrant a recommendation of release at the present time since the defendant still had a poor understanding of his underlying difficulties.

The court quite obviously chose to believe the uncontradicted testimony of the expert witness and, accordingly, concluded that, "(a)s a result of his mental illness, the release of James Cuvelier would constitute a danger to himself and others." The defendant's motion for revocation of commitment was therefore denied.

The gravamen of the defendant's broad attack upon the findings of fact rests upon his assertion that certain psychiatric reports before the court were erroneously relied upon to form the basis of the court's ultimate decision notwithstanding the failure of either party to introduce them into evidence and in spite of the fact that many of those reports were allegedly outdated and therefore irrelevant on the issue of the defendant's present condition.

When an individual is confined following an acquittal of criminal charges on the grounds of mental disease or defect, General Statutes § 53a-47(c)(3) provides that periodic reports be submitted to the court concerning the individual's mental condition and copies of those reports be sent to both the state's attorney or prosecutor and counsel for the confined person. ³ Although a hearing to determine whether the individual should be released prior to the expiration of the maximum period is mandated only every five years, "(t)he court, upon its own motion or at the request of the parties, may at any time hold a hearing." In the present case, the hearing to determine the defendant's eligibility for release from confinement was held pursuant to the defendant's request filed eighteen months after the initial order of commitment.

The fact that psychiatric reports are required by statute to be filed with the court every six months does not, as the state argues, allow the court to dispense with the traditional evidentiary procedures followed in all other cases which require the formal introduction of such evidence. See McCormick, Evidence (2d Ed.) § 51. In view of the court's statutory authority to call for a hearing at any time on its own motion, those periodic reports serve to apprise the court of the individual's progress and, in the absence of any request by the parties, provide it with the facts necessary to make an informed decision as to the propriety of reviewing the status of the confined individual. Once the formal hearing has begun, however, the court must base its decision on the evidence presented by the parties. Anonymous v. Norton, 168 Conn. 421, 427, 362 A.2d 532. Without such a restriction, an individual seeking his release from confinement would be unable to prevent the court from relying upon portions of those records which may be irrelevant to his mental condition or otherwise unreliable to establish his present status. Further, by circumventing the rules providing for the formal presentation of evidence, a defendant is denied the opportunity to object to those records and thereby require their authors to personally testify in order that they may be confronted and cross-examined by the defendant. See, generally, annot., 32 A.L.R.2d 434, 473-75.

In this case, however, the trial court did not base its decision to deny the defendant's motion upon reports not introduced into evidence. An examination of the court's findings and the appendix to the state's brief reveals that the facts found by the court were based upon the testimony of Dr. Langhammer elicited during the hearing and on his report to the court dated November 8, 1976, identified as state's exhibit A. ⁴ While the witness frequently referred to earlier reports not offered into evidence, it is important to note that nowhere in the record is there any indication that an objection or exception was taken by the defendant to any reference to those reports; consequently, it is not subject to review. State v. Hawkins, 162 Conn. 514, 517, 294 A.2d 584, cert. denied, 409 U.S. 984, 93 S.Ct. 332, 34 L.Ed.2d 249. In fact, counsel for the defendant extensively questioned the witness regarding the reports during a wide-ranging cross-examination. The trial court was not alerted to the claim the defendant is now making on appeal, so that any material might have been marked for identification and an objection and exception taken, in order to give the court an opportunity to rule on the issue. Mucci v. LeMonte, 157 Conn. 566, 569-70, 254 A.2d 879.

Most courts have held that when an expert witness bases his opinion as to sanity on medical, psychological or hospital reports or records not in evidence, the opinion is admissible if the reports are those customarily relied upon by such an expert in making a diagnosis. United States v. Harper, 460 F.2d 705 (5th Cir.); Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637; State v. Reardon, 172 Conn. 593, 597-98, 376 A.2d 65; People v. Ward, 61 Ill.2d 559, 338 N.E.2d 171; Commonwealth v. Thomas, 444...