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*********************************************** 
STATE OF CONNECTICUT v. RUBEN VASQUEZ

(AC 42147)

Bright, Moll and Bishop, Js.

Syllabus

The acquittee, who had been found not guilty of certain crimes by reason

of mental disease or defect, appealed to this court from the judgment

of the trial court denying his application for discharge from the jurisdiction of the Psychiatric Security Review Board. He claimed that the

diagnoses attributed to him—cannabis induced psychotic episode, an

acute intoxication now in full remission, cannabis use disorder in remission in a controlled environment, and alcohol use disorder in remission

in a controlled environment—are not considered mental illnesses and,

thus, do not constitute psychiatric disabilities pursuant to the statutes

(§§ 17a-580 through 17a-602) concerning the psychiatric security review

board. Held that the trial court did not err in denying the acquittee’s

application for discharge from the jurisdiction of the board and determining that the acquittee’s diagnoses constituted psychiatric disabilities

under §§ 17a-580 through 17a-602; that court’s finding that the acquittee

was mentally ill, suffered from a substance induced psychotic disorder

and, thus, suffered from more than mere substance abuse was not clearly

erroneous, as the court, in making that finding, considered testimony

from a treating forensic psychiatrist, as well as the acquittee’s history

under the supervision of the board, his anxious and impulsive behavior

over the past eight years, the nature of and circumstances surrounding

his criminal conduct in assaulting and attempting to assault individuals,

his need for continued therapy and supervision, his refusal to consider

medication as recommended and his lack of compliance and honesty

with staff members and treaters, and on the basis of the totality of the

evidence, the court determined that if the acquittee were to be released

from the board’s supervision entirely, he would under those circumstances present a danger to himself or others.

Argued September 24—officially released December 17, 2019

Procedural History

Application for discharge from the jurisdiction of the

psychiatric security review board, brought to the Superior Court in the judicial district of Hartford and tried

to the court, D’Addabbo, J.; judgment dismissing the

application, from which the acquittee appealed to this

court. Affirmed.

Monte P. Radler, public defender, with whom was

Richard E. Condon, Jr., senior assistant public

defender, for the appellant (acquittee).

Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were Gail P. Hardy, state’s attorney, Vicki

Melchiorre, supervisory assistant state’s attorney, and

Adam B. Scott, supervisory assistant state’s attorney,

for the appellee (state).
Opinion

BISHOP, J. The acquittee,1 Ruben Vasquez, appeals

from the judgment of the trial court denying his application for discharge from the jurisdiction of the Psychiatric Security Review Board (board).2 On appeal, the

acquittee claims that the court erred in denying his

application for discharge because the diagnoses attributed to him—cannabis induced psychotic episode, an

acute intoxication now in full remission; cannabis use

disorder in remission in a controlled environment; and

alcohol use disorder in remission in a controlled environment—are not considered mental illnesses and,

thus, do not constitute psychiatric disabilities under

General Statutes §§ 17a-580 through 17a-602 (board

statutes). We affirm the judgment of the court.

The following facts and procedural history are relevant to our analysis. ‘‘[On July 14, 2009, the acquittee]

. . . randomly attack[ed] five young individuals, with

a four foot six inch [one by four] hard yellow pine

pressure treated board. Two of the young individuals

attacked were a three and one year old child. While

being taken into custody, [the acquittee] physically

attacked a police officer.’’

The acquittee was charged with four counts of assault

in the second degree in violation of General Statutes

§ 53a-60 (a) (2), two counts of risk of injury to a child

in violation of General Statutes § 53-21 (a) (1), four

counts of criminal attempt to commit assault in the first

degree in violation of General Statutes §§ 53a-49 and

53a-50 (a) (1), and two counts of assault of a peace

officer in violation of General Statutes § 53a-167c (a)

(1).3 On June 7, 2011, the acquittee was found not guilty

by reason of mental disease or defect pursuant to General Statutes § 53a-13.4 On August 8, 2011, the court,

Randolph, J., committed the acquittee to the jurisdiction of the board and ordered that he be confined at

Dutcher Service on the campus of the Connecticut Valley Hospital for a period not to exceed fifteen years.

On July 25, 2017, in accordance with § 17a-593 (a),

the acquittee filed an application with the court seeking

discharge from the jurisdiction of the board. The court

forwarded the application to the board, which held a

hearing on September 15, 2017, pursuant to General

Statutes § 17a-593 (d). On October 26, 2017, the board

filed its report with the court recommending that the

acquittee not be discharged because ‘‘[a]lthough [the

acquittee’s] psychotic symptoms have not been active

since his commitment to the [b]oard, he has repeatedly

demonstrated poor judgment, impulsivity, deceitfulness

and rule breaking behavior. He has disregarded the

rules and protocols in a hospital setting, thereby jeopardizing the [t]emporary [l]eave that would have permitted [the acquittee] to transition to the community. [The

acquittee’s] treatment team has recommended he con-
sider medication to assist with some of his problematic

behaviors, but he has declined the recommendation.’’

In addition, in its report filed with the court, the board

discussed the acquittee’s risk factors, stating that ‘‘[a]

significant risk factor for [the acquittee] remains his

history of substance use. As testimony indicated, a substance use relapse would increase [the acquittee’s] risk

for a re-emergence of his psychotic symptoms. Testimony noted that stress has the potential to exacerbate

[the acquittee’s] risk of relapse. If discharged from the

jurisdiction of the [b]oard, [the acquittee] would return

to the community without an established support network. Given that [the acquittee’s] psychotic symptoms

are intimately tied to his substance use, and [that the

acquittee] failed to conform his behavior appropriately

in a supervised inpatient setting, the [b]oard finds that

[the acquittee’s] risk for a substance abuse relapse in

a nonsupervised setting without an established community support network is significant. 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 May 29, 2018, after receiving the report, the court,

D’Addabbo, J., held a hearing on the acquittee’s application for discharge pursuant to § 17a-593 (f). The court

heard testimony from the following individuals: Maya

Prabhu, M.D., consultant to the Department of Mental

Health & Addiction Services; the acquittee; and Larry

Spencer of the Capitol Region Mental Health Center.

The court concluded the evidentiary portion of the hearing on May 29, 2018, and heard arguments from the

parties’ respective counsel on June 18, 2018.

On July 27, 2018, the court issued a memorandum of

decision denying the acquittee’s application for discharge, concluding that, on the basis of the evidence

presented at the May 29, 2018 hearing, the acquittee

has ‘‘psychiatric disabilities’’ and ‘‘if . . . released from

the [b]oard’s supervision entirely . . . would . . .

present a danger to himself or others.’’ This appeal

followed. Additional facts will be set forth as necessary.

The acquittee claims that the court erred in denying

his application for discharge because the diagnoses

attributed to him—cannabis induced psychotic episode,

an acute intoxication now in full remission; cannabis

use disorder in remission in a controlled environment;

and alcohol use disorder in remission in a controlled

environment—are not considered mental illnesses and,

thus, are not psychiatric disabilities under the board

statutes. In making this claim, the acquittee invites this

court to overlook our Supreme Court’s decision in State

v. March, 265 Conn. 697, 830 A.2d 212 (2003), and this

court’s decision in State v. Kalman, 88 Conn. App. 125,

868 A.2d 766, cert. denied, 273 Conn. 938, 875 A.2d 44

(2005), and to conclude that, because his diagnoses are
based on substance and alcohol abuse, they cannot be

considered mental illnesses or psychiatric disabilities

under the board statutes. We are not persuaded.

We first review the statutory procedure relevant to

an application for discharge by an acquittee from the

jurisdiction of the board. When an individual is found

not guilty by reason of mental disease or defect, the

individual—the acquittee—is committed to the custody

of the Commissioner of Mental Health and Addiction

Services for examination of the acquittee’s mental condition. General Statues § 17a-582 (a). Once the examination is complete, a hearing is held, and the court determines whether the examinee should be confined,5

conditionally released,6 or discharged.7 General Statutes

§ 17-582 (e) (1) and (2). If the court finds that the

acquittee should be confined, the acquittee is committed to the jurisdiction of the board for a maximum term

of commitment, no longer than that which could have

been imposed if the acquittee had been convicted of

the offense. General Statutes § 17a-582 (e) (1).

After the court has committed the acquittee to the

jurisdiction of the board, the board must conduct a

hearing within ninety days to review the status of the

acquittee. General Statutes § 17a-583 (a). During the

hearing, the board must consider whether the acquittee

should continue to be confined or whether the acquittee

should be conditionally released or discharged. General

Statutes § 17a-584. The board is required to conduct

these hearings at least once every two years until the

acquittee is discharged. General Statutes § 17a-585. The

acquittee may apply to the court for discharge no sooner

than six months after the board’s initial hearing and not

more than once every six months thereafter. General

Statutes § 17a-593 (a). The court then forwards the

application for discharge to the board. Thereafter, the

board has ninety days after receiving the application

to file a report with the court setting forth findings

and conclusions as to whether the acquittee should be

discharged. General Statutes § 17a-593 (d).

Upon receiving the report, the court conducts a hearing on either the recommendation from the board or the

acquittee’s application for discharge. General Statutes

§ 17a-593 (f). At the hearing, the acquittee has the burden of proving by a preponderance of the evidence that

he or she should be discharged. General Statutes § 17a593 (g). Thereafter, the court makes a finding regarding

the mental condition of the acquittee, ‘‘considering that

its primary concern is the protection of society . . . .’’

General Statutes § 17a-593 (g). In its finding, the court

may determine either that the application for discharge

be dismissed or that the acquittee be discharged from

the board’s custody. See § 17a-593 (g).

Here, the acquittee claims that the court erred in

denying his discharge application on the ground that

his diagnoses constituted psychiatric disabilities under
the board statutes. More specifically, the acquittee

asserts that because General Statutes § 17a-458 (b) differentiates between ‘‘persons with psychiatric disabilities’’8 and ‘‘persons with substance use disorders,’’9

the

acquittee is not considered to have a ‘‘psychiatric disability.’’

Resolution of the acquittee’s claim on appeal requires

us to interpret the meaning of the terms ‘‘psychiatric

disability’’ and ‘‘mental illness’’ under the board statutes, which presents a question of statutory interpretation over which our review is plenary. See State v.

March, supra, 265 Conn. 705. On the basis of our interpretation of the relevant statutory scheme, we then

assess whether the court’s factual determination of the

status of the acquittee’s mental health was clearly

erroneous.

General Statutes § 17a-580 (7) provides: ‘‘ ‘Psychiatric

disability’ includes any mental illness in a state of remission when the illness may, with reasonable medical

probability, become active. ‘Psychiatric disability’ does

not include an abnormality manifested only by repeated

criminal or otherwise antisocial conduct . . . .’’

In addition, as our Supreme Court explained in State

v. March, supra, 265 Conn. 697, ‘‘[t]he statutes relevant

to this appeal, [the board statutes], are contained in

part V of chapter 319i [of our General Statutes]. . . .

General Statutes § 17a-581 (j) authorizes the board to

adopt regulations necessary to carry out the purposes

of chapter 319i. Section 17a-581-1 of the Regulations of

Connecticut State Agencies provides: These rules and

regulations will govern practice and procedure before

the [board] as authorized by [§§] 17a-580 through 17a602 of the General Statutes. Section 17a-581-2 (a) (11)

of the Regulations of Connecticut State Agencies corresponds to § 17-580 (11) of the General Statutes. [Section 17-580 (11)] defines a person who should be discharged pursuant to § 17a-593 as an acquittee who does

not have psychiatric disabilities . . . to the extent that

his discharge would constitute a danger to himself or

others . . . whereas [§ 17a-581-2 (a) (11)] provides

that ‘[p]erson who should be discharged means an

acquittee who is not mentally ill or mentally retarded

to the extent that his discharge would constitute a danger to himself or others. . . . Subsection (a) (5) of

[§ 17a-581-2] defines mental illness as follows: Mental

illness means any mental illness or mental disease as

defined by the current Diagnostic and Statistical Manual

of Mental Disorders [(DSM-V)] of the American Psychiatric Association and as may hereafter be amended.

. . .

‘‘Thus, it is apparent that the . . . definitions found

in § 17a-458 [b] do not apply to part V of chapter 319i

because that statute specifically enumerates the sections to which it applies and does not refer to any of

the sections in part V.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) Id.,

706–708.

Furthermore, in State v. Kalman, supra, 88 Conn.

App. 125, as in this case, the acquittee was found not

guilty of criminal charges by reason of mental defect

or disease and was committed to the jurisdiction of the

board. The acquittee in Kalman claimed that his mental

condition was ‘‘characterized by alcohol dependence,

in remission in a controlled environment; cocaine

dependence, in remission in a controlled environment’’;

and other substance induced mood disorders. Id., 134–

35. Similar to this case, the acquittee in Kalman claimed

that his diagnoses were not psychiatric disabilities

because the statutory scheme for civil commitments

applied and excluded alcohol and drug-dependent persons as individuals who have mental or emotional conditions. Id., 135.

This court in Kalman concluded that the civil commitment statutes were not relevant to whether the

acquittee had a psychiatric disability under General

Statutes §§ 17a-580 through 17a-603. Id. Rather, this

court concluded that based on our Supreme Court’s

reasoning in State v. March, supra, 265 Conn. 708, the

definition of ‘‘psychiatric disability’’ found in the board

statutes applied. State v. Kalman, supra, 136.

On review, we are bound not only by the holdings

of Kalman and March but also by the persuasiveness

of their reasoning. First, ‘‘[i]t is axiomatic that, [a]s an

intermediate appellate court, we are bound by Supreme

Court precedent and are unable to modify it. . . . [W]e

are not at liberty to overrule or discard the decisions

of our Supreme Court but are bound by them. . . . [I]t

is not within our province to reevaluate or replace those

decisions.’’ (Internal quotation marks omitted.) State v.

Bischoff, 189 Conn. App. 119, 123, 206 A.3d 253, cert.

granted, 331 Conn. 926, 207 A.3d 28 (2019). Second,

‘‘[t]his court often has stated that this court’s policy

dictates that one panel should not, on its own, reverse

the ruling of a previous panel. The reversal may be

accomplished only if the appeal is heard en banc.’’

(Internal quotation marks omitted.) State v. Carlos P.,

171 Conn. App. 530, 545 n.12, 157 A.3d 723, cert. denied,

325 Conn. 912, 158 A.3d 321 (2017).

Because we are bound by our Supreme Court’s opinion in State v. March, supra, 265 Conn. 697, and this

court’s opinion in State v. Kalman, supra, 88 Conn.

App. 125, we conclude that the court did not err in

determining that the acquittee’s diagnoses were mental

illnesses defined by the DSM-V, which constituted psychiatric disabilities under the board statutes.10

In addition to our task of statutory construction, we

must also review the court’s determination of the

acquittee’s mental health condition. ‘‘The determination

as to whether an acquittee is currently mentally ill . . .
is a question of fact and, therefore, our review . . . is

governed by the clearly erroneous standard. . . . A

finding is clearly erroneous 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. 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.

. . .’’ (Citation omitted; internal quotation marks omitted.) State v. Jacob, 69 Conn. App. 666, 680, 798 A.2d

974 (2002).

In reaching its conclusion that the acquittee was mentally ill and thus suffered from a substance induced

psychotic disorder, the court considered testimony

from Dr. Maya Prabhu, a treating forensic psychiatrist,

who has been involved with the acquittee’s psychological treatment since his commitment to the board. During her testimony, Dr. Prabhu explained that the

acquittee suffered from an underlying psychosis that

was induced by substance abuse. The court found that

‘‘[a]ccording to Dr. Prabhu, [the acquittee] tends to see

his ‘crime’ as being related to substance abuse and [does

not] think he needs to be on medication for his mental

illness issues. Dr. Prabhu present[ed] the acquittee as an

individual that has difficulty with emotional regulation

when stressed. . . . During his commitment, [the

acquittee] became involved in a relationship with

another patient at Whiting Forensic. [The acquittee]

was not forthright with [Whiting Forensic staff] about

the relationship. . . . The issues related to the . . .

relationship . . . caused a stressful situation for [the

acquittee] . . . [and the acquittee] engaged in a series

of rule infractions. Dr. Prabhu testified that this relationship became tempestuous and volatile. [The acquittee]

was observed . . . on the telephone with [the other

patient] engaging in volatile conversations. . . . A

review of the hospital records indicate[d] that in the

month of March 2017 there were approximately 500

telephone calls between [the acquittee] and the [other

patient]. Dr. Prabhu indicate[d] that this conduct is a

product of the acquittee’s reaction to stress. He gets

excessive, deeply anxious and frustrated. . . . In the

face of this conduct, [the acquittee] lacks acceptance

of having a mental illness. Dr. Prabhu opine[d] that

unless he has treatment, this [reaction] to stress and

resulting conduct would be a risk for him.’’

In addition to the testimony of Dr. Prabhu, the court

‘‘considered the record which includes the acquittee’s

history under the supervision of the [b]oard, his past

diagnosis, his present diagnosis, his lack of violent

behavior, his anxious and impulsive behavior over the

past eight years, the nature of and circumstances sur-
rounding his criminal conduct in assault[ing] and

attempting to assault individuals, his need [for] continued therapy and supervision, his refusal to consider

medication to assist with some problematic behavior,

previous [b]oard reports and the likelihood of any

supervision upon his release from the [b]oard’s jurisdiction. [T]he court also considered . . . his lack of compliance and honesty with the staff and treaters and his

surreptitious conduct with prohibited items . . . [and]

the conduct with the [other patient] and failure to abide

by instructions to cease such conduct, which led to

a termination of a temporary leave opportunity [and]

cause[d] the [c]ourt pause.’’ On the basis of the totality

of this evidence, the court determined ‘‘that if the

acquittee were to be released from the [b]oard’s supervision entirely, he would under those circumstances present a danger to himself or others. In his current commitment under the [b]oard’s supervision in his controlled

environment . . . the risks of danger to himself or [others] are minimized.’’ On the basis of our analysis of

the applicable law and our review of the record, we

conclude that the court’s finding, consistent with the

diagnoses in both the board’s report and the doctor’s

testimony, that the acquittee suffered from more than

mere substance abuse was not clearly erroneous, and,

accordingly, that the trial court’s denial of the

acquittee’s application was legally and factually correct.

The judgment is affirmed.

In this opinion the other judges concurred.

1

‘‘[An] ‘[a]cquittee’ [is] any person found not guilty by reason of mental

disease or defect pursuant to section 53a-13 . . . .’’ General Statutes § 17a580 (1).

2 We treat the court’s denial of the acquittee’s application as a dismissal

pursuant to General Statutes § 17a-593 (g).

3 One count of assault of a peace officer subsequently was dismissed.

4 General Statutes § 53a-13 (a) provides: ‘‘In any prosecution for an offense,

it shall be an affirmative defense that the defendant, at the time he 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.’’

5 General Statutes § 17a-580 (10) defines a ‘‘[p]erson who should be confined’’ as ‘‘an acquittee who has psychiatric disabilities or has intellectual

disability to the extent that such acquittee’s discharge or conditional release

would constitute a danger to the acquittee or others and who cannot be

adequately controlled with available supervisionand treatment on conditional release . . . .’’

6 General Statutes § 17a-580 (9) defines a ‘‘[p]erson who should be conditionally released’’ as ‘‘an acquittee who has psychiatric disabilities or has

intellectual disability to the extent that his final discharge would constitute

a danger to himself or others but who can be adequately controlled with

available supervision and treatment on conditional release . . . .’’

7 General Statutes § 17a-580 (11) defines a ‘‘[p]erson who should be discharged’’ as ‘‘an acquittee who does not have psychiatric disabilities or does

not have intellectual disability to the extent that such acquittee’s discharge

would constitute a danger to the acquittee or others . . . .’’

8 General Statutes § 17a-458 (a) defines ‘‘[p]ersons with psychiatric disorders’’ as ‘‘those persons who are suffering from one or more mental disorders

as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’ . . . .’’

9 General Statutes § 17a-458 (b) defines ‘‘[p]ersons with substance use

disorders’’ as ‘‘alcohol dependent persons, as that term is defined in subdivision (1) of section 17a-680, or drug dependent persons, as that term is
defined in subdivision (7) of section 17a-680 . . . .’’

10 We note that the court relied on General Statutes § 17a-458 (a) for the

definition of ‘‘persons with psychiatric disability.’’ The court nonetheless

applied the correct standard in concluding that the acquittee suffered from

mental illnesses as defined by the DSM-V and, consequently, from psychiatric

disabilities under the board statutes.