author: Borden, J.

text:
    State of Connecticut v. Warren Patterson
    (14807)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.

      Argued May 11
    decision released July 26, 1994

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, Carol Dreznick, assistant state’s attorney, and James Somers, legal intern, for the appellant (state).

      David M. Cohen, with whom, on the brief, was Gregory J. Williams, for the appellee (defendant).
   Borden, J.

The principal issue in this certified appeal is whether the judge in a criminal trial must be present in the courtroom during the entire jury voir dire. The defendant, Warren Patterson, was charged with possession of marijuana with intent to. sell in violation of General Statutes § 21a-277 (b), and possession of marijuana in violation of General Statutes § 21a-279 (c). The jury returned a verdict of guilty on the first count and not guilty on the second count. The trial court, Sylvester, J., rendered judgment in accordance with the verdict and also, on the basis of the verdict, revoked the defendant’s probation from a prior offense.

The defendant appealed to the Appellate Court from the judgment of conviction and the judgment of revocation of probation, claiming, inter alia, that the trial court had improperly concluded that the state had not discriminatorily employed a peremptory challenge to exclude an African-American venireperson from the jury. The Appellate Court reversed the judgment of conviction, concluding that the trial judge’s absence from the courtroom during voir dire: (1) precluded review of the assertedly discriminatory peremptory challenge; and (2) constituted per se reversible error. State v. Patterson, 31 Conn. App. 278, 281-302, 624 A.2d 1146 (1993). We reverse the judgment of the Appellate Court.

The following facts are undisputed. The jury selection in this case occurred on October 3 and 4, 1991. After the trial judge gave the first panel its preliminary instructions, he stated: “I’m going to leave the voir dire up to you people, and I’ll be in my chambers if I’m needed. Thank you.” The judge then retired to his chambers, leaving the proceedings in the hands of the two attorneys and the court clerk. The proceedings were recorded on cassette tapes. Neither party objected to this procedure.

The defendant is an African-American, and there were three African-Americans in the venire. After the state had used peremptory challenges to excuse the first two African-Americans in the venire, defense counsel stated: “I’m going to make a Batson challenge. I think we should get the judge out here.” The judge then returned to the courtroom, and defense counsel argued that the state’s peremptory challenge to the second prospective African-American juror was part of a pattern of deliberate racial discrimination in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Defense counsel asked the court to review the tape recording of that part of the voir dire. The trial court then asked the state why the prospective juror had been excused. The state replied that it had excused the prospective juror because of the juror’s answers to questions about how she goes about making up her mind, and whether she listens to other people. The trial court then requested a playback of the tape recording of the state’s questions and the prospective juror’s replies on this topic. The court did not request a playback of either the tape recording of defense counsel’s questioning on the same topic or any other portion of the voir dire. The trial court ruled in favor of the state and the defendant took an exception. The judge then returned to his chambers.

Shortly thereafter, the judge reentered the courtroom to give preliminary instructions to a second panel of prospective jurors. Afterward, he returned to his chambers. He was recalled to decide a challenge for cause, after which he again returned to his chambers without objection for the remainder of the voir dire. The judge was present for all of the trial proceedings after voir dire.

The Appellate Court concluded that the defendant’s Batson challenge was unreviewable because the trial court had not been in a position to make the necessary findings underlying the claim. State v. Patterson, supra, 31 Conn. App. 281. Nonetheless, the Appellate Court reversed the conviction, reasoning that the presence of a judge at a criminal jury trial is a constitutional imperative, and that voir dire is a critical stage of the trial process. The Appellate Court therefore concluded that the judge’s physical presence is required throughout a criminal voir dire. Id., 281-93. The court also noted that constitutional rights of both the defendant and prospective jurors are at risk during voir dire. Focusing particularly on the constitutional rights of the prospective jurors, the Appellate Court further concluded that the right to the presence of the judge at voir dire could not be waived by the defendant. Id., 297. Finally, the Appellate Court concluded that the rights at stake are so basic and fundamental that their breach could never be deemed harmless. Id., 302.

We granted the state’s petition for certification to appeal, limited to the following issues: (1) “Under applicable constitutional, common law or Practice Book rules, must a trial judge be physically present at voir dire in a criminal trial?”; (2) “If the judge’s physical presence is required, may the defendant waive the judge’s presence, and did he do so in the circumstances of this case?”; and (3) “If the judge’s physical presence is required, may the judge’s absence be harmless error, and if so, was it harmless error in the circumstances of this case?” State v. Patterson, 227 Conn. 901, 630 A.2d 72 (1993).

We conclude that, under existing law, even assuming that the trial judge must be present in the courtroom throughout the voir dire of a criminal trial, the defendant can waive such a requirement. We further conclude that the record demonstrates that the defendant waived the presence of the trial judge in this case. We also conclude, however, under our inherent supervisory authority over the courts, that trial judges must henceforth remain physically present during the entire voir dire in a criminal trial.

I

The state first claims that the Appellate Court improperly concluded that the trial judge must be physically present throughout the voir dire in a criminal trial. We begin our analysis by assuming, without deciding, that the state is incorrect. We assume, rather, that under applicable common law, Practice Book rules, or federal and state constitutional requirements, the trial judge is required to be physically present during the entire voir dire of a criminal trial. Nonetheless, we conclude that the defendant can waive this right and that he did so in this case.

“Both the federal and state constitutions guarantee to an accused the right to a public trial by an impartial jury. U.S. Const., amends. VI and XIV; Conn. Const., art. I, § 8.” State v. Esposito, 223 Conn. 299, 308, 613 A.2d 242 (1992). Part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors. Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992). In Connecticut, the right to question jurors individually is specifically guaranteed by our constitution. Rozbicki v. Huybrechts, 218 Conn. 386, 390, 589 A.2d 363 (1991). The purpose of the voir dire examination is twofold: “first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge.” State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987); State v. Dahlgren, 200 Conn. 586, 600, 512 A.2d 906 (1986). There are two sets of interests protected by the voir dire: (1) the interests of the parties, namely, the defendant and the state; and (2) the interests of the prospective jurors.

A criminal defendant has the capacity to waive many of his or her fundamental procedural rights. The defendant can waive the right to counsel; Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Frye, 224 Conn. 253, 617 A.2d 1382 (1992); the right to remain silent; Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Roseboro, 221 Conn. 430, 442, 604 A.2d 1286 (1992); the right to be present during trial; State v. Simino, 200 Conn. 113, 125-29, 509 A.2d 1039 (1986); and, by entering a guilty plea, the rights to trial by jury and to confrontation, and the right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Badgett, 200 Conn. 412, 417, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

Indeed, by failing to object in a timely manner, the defendant is ordinarily deemed to have waived his equal protection right against racially motivated peremptory challenges under Batson v. Kentucky, supra, 476 U.S. 79. See Ford v. Georgia, 498 U.S. 411, 417, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991). Timely objection serves to avoid prejudicial error by permitting the trial court and the prosecutor to reconsider and perhaps change their courses of conduct while that is still possible. Government of Virgin Islands v. Forte, 806 F.2d 73 (3d Cir. 1986). In addition, timely objection serves to preserve an adequate record for appeal. State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). As the United States Supreme Court has stated, “ ‘[n]o procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right.’ ” Peretz v. United States, 501 U.S. 923, 936-37, 111 S. Ct. 2661, 115 L. Ed. 2d 808 (1991), quoting Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 2d 834 (1944).

We conclude that because the defendant can waive one of the primary rights protected by judicial supervision of the entire voir dire, namely, his equal protection right against discriminatory peremptory challenges, the defendant can also waive the right to judicial supervision over the voir dire process itself. In these circumstances, the means of protecting the right should not receive greater protection than the right itself. Thus, as is true regarding most procedural rights, the defendant can waive his right to the presence of a judge during the entire criminal voir dire.

The Appellate Court, however, based its decision primarily on the right of prospective jurors not to be improperly excluded from participating in the trial process. We agree that prospective jurors have independent and protected interests in the criminal trial process. We disagree with the Appellate Court, however, that the defendant cannot, expressly or by implication, waive his right to assert those interests.

There is no question that jurors have a separate and independent interest in participating in the trial process, and that the defendant has third party standing to assert that interest. Georgia v. McCollum, 505 U.S. 42, 55, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991); Powers v. Ohio, 499 U.S. 400, 403-404, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); see also B. Underwood, “Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?” 92 Colum. L. Rev. 725 (1992). “The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system.” Powers v. Ohio, supra, 406. “The jury system postulates a conscious duty of participation in the machinery of justice .... One of the greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse.” Balzac v. Porto Rico, 258 U.S. 298, 310, 42 S. Ct. 343, 66 L. Ed. 627 (1922).

It is also not open to question that discrimination in jury selection offends “the dignity of persons and the integrity of the courts.” Powers v. Ohio, supra, 499 U.S. 402. “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Batson v. Kentucky, supra, 476 U.S. 87.

The United States Supreme Court has never concluded, however, that a criminal defendant cannot waive his right to assert the rights of jurors by failing to make timely objection. See Ford v. Georgia, supra, 498 U.S. 423. Indeed, the taint associated with improper peremptory challenges is substantially reduced if the defendant accedes to their use.

When a criminal defendant fails to raise a Batson-type claim with respect to a particular venireperson, he deprives his adversary of the opportunity to respond thereto, and he deprives the trial court of the opportunity to make a timely and accurate assessment of the sensitive and particularized facts necessary to the court’s ruling. As we indicated above, the defendant is therefore ordinarily deemed to have waived his Batson-type claim by failing to assert it in a timely manner.

Waiver can occur, moreover, even when the trial judge is present throughout the voir dire. Thus, in that instance the defendant’s failure to raise a Batson-type claim would result in the potential juror’s right to participate remaining unvindicated in fact. In effect, then, even with the continuous presence of the judge at voir dire, the defendant by his silence can waive his right to assert the juror’s interests. This conclusion does no more than recognize the reality of the trial process.

If that is the case, we fail to see why the defendant in the context of a particular criminal trial, by failing to object, cannot in effect also waive his right to assert the juror’s interests in the continuous presence of a judge at the voir dire. To the contrary, we conclude that because the defendant can effectively waive his right to assert the right of jurors against improper exclusion by failing to assert a Batson-type challenge, the defendant can similarly waive his right to assert the juror’s interest in the continuous presence of the judge at a criminal voir dire.

We next address explicitly that which we have implied, namely, the question of what constitutes a valid waiver in the context of this case. In some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); State v. Shockley, 188 Conn. 697, 453 A.2d 441 (1982). In other circumstances, waiver can be implied. See State v. Almeda, 211 Conn. 441, 448, 560 A.2d 389 (1989); State v. Kuskowski, 200 Conn. 82, 88, 510 A.2d 172 (1986). We conclude that the waiver of judicial supervision of the entire voir dire in a criminal case need not be more deliberately expressed than the waiver of rights under Batson v. Kentucky, supra, 476 U.S. 79. The waiver can be made by counsel, and it will ordinarily be inferred from the absence of an objection.

The record indicates a valid waiver in this case. The defendant was represented by counsel and had had prior personal experience with the criminal justice system. See State v. Williams, 205 Conn. 456, 463, 534 A.2d 230 (1987). Of even greater significance is the fact that the defendant acquiesced each time the judge left the courtroom, asking the judge to return only when judicial determinations were needed. This behavior demonstrates that the defendant considered the judge’s presence to be essential only during occasional, contested portions of the voir dire. During the uncontested portions of the voir dire, the defendant was satisfied with the judge’s being absent and available, and with the proceedings being recorded on a tape cassette.

II

This conclusion, however, does not end our inquiry. Despite our conclusion that the defendant validly waived continuous judicial supervision of the voir dire in this case, we now hold, under our supervisory power over the courts, that henceforth the judge is required to remain on the bench throughout the voir dire of a criminal trial.

As an appellate court, we possess an inherent supervisory authority over the administration of justice. Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 232, 578 A.2d 1075 (1990); State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Ross, 208 Conn. 156, 158-59, 543 A.2d 284 (1988); State v. Madera, 198 Conn. 92, 99, 503 A.2d 136 (1985); State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). The standards that we set under this supervisory authority “are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as ‘due process of law’ . . . ." McNabb v. United States, 318 U.S. 332, 340, 63 S. Ct. 608, 87 L. Ed. 819 (1942). Rather, the standards are flexible and are to be determined “in the interests of justice.” State v. Ross, supra, 159.

A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at stake in the ordinary civil case. They involve significant public interests. “The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.” In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1969). Indeed, the criminal jury trial has a role in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority. Duncan v. Louisiana, 391 U.S. 145, 156, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). In addition, the state has a valid and weighty interest in convicting the guilty. Summerville v. Warden, 229 Conn. 397, 427, 641 A.2d 1356 (1994); State v. Sawyer, 227 Conn. 566, 579, 630 A.2d 1064 (1993).

Moreover, prospective jurors ought to be made to feel that the criminal trial process is important to everyone involved, and that they are an essential part of the process. See American Bar Association, Standards Relating to Juror Use and Management (1983). The presence of the trial judge from the beginning of voir dire impresses upon the jury the gravity of the proceedings. The uninterrupted supervision of the proceedings by the judicial authority, mindful of everything that transpires in the courtroom, is an important part of the appearance that justice is being done in a criminal case.

In addition, the judge has significant responsibilities during the voir dire process of a criminal trial. The judge is charged with ruling on challenges based on the purposefully discriminatory use of peremptory challenges. Batson v. Kentucky, supra, 476 U.S. 79; State v. Holloway, supra, 209 Conn. 636. Further, the judge ought to protect the legitimate privacy interests of prospective jurors. Press Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984). In addition, of course, the judge has the responsibility of ruling on challenges for cause, and of determining the proper scope of questioning of venirepersons.

It may well be true that, in some instances, a trial judge can adequately discharge these responsibilities solely by responding when called by the parties, making appropriate inquiries, listening to the tape or reading the transcript, and initiating further inquiries, including inquiries of the venireperson, when necessary. Such a process may sufficiently protect the accuracy of the fact-finding process involved in making these determinations. We recognize, also, that permitting the judge to be absent from voir dire unless called by the parties may contribute to judicial economy and to the efficient use of scarce judicial resources by freeing the judge to work on opinions and perform other judicial duties.

It is also true, however, that firsthand observations ordinarily are a more reliable way to make the factual determinations required of the trial judge during criminal voir dire, particularly those sensitive determinations implicated in a Batson-type challenge. A transcript or tape cassette will not fully capture all of the nuances, such as facial expressions or bodily movements, that might appropriately be relevant in making those determinations. Furthermore, it may be that the judge who is continuously present at a criminal voir dire will more easily detect patterns of questioning and will more readily appreciate the demographic composition of the venire than the judge who is asked to review selected playbacks.

On balance, we are persuaded that the significance of the interests at stake in a criminal trial, taken together with the greater likelihood of accuracy in fact-finding resulting from a judge’s continuous presence, are sufficient to outweigh the competing interests, namely, other less reliable safeguards of accuracy and the interest in judicial economy, so as to require continuous judicial supervision during the voir dire of a criminal trial. Thus, just as we decided under our supervisory power that the state must provide a prima facie response if the defendant raises a Batson claim; State v. Holloway, supra, 209 Conn. 645-46; we now decide under our supervisory power that henceforth the trial judge must continuously be present to oversee voir dire in a criminal case. Because this requirement is imposed by this court pursuant to its supervisory powers, the requirement cannot be waived by either party in future criminal cases.

The judgment of the Appellate Court is reversed, and the case is remanded to that court for consideration of the remaining claims of the defendant.

In this opinion the other justices concurred.

       The appeals from the judgment of conviction and the judgment of revocation of probation were consolidated in the Appellate Court. In that consolidated appeal, the defendant also claimed that the trial court had improperly: (1) failed to set aside legally inconsistent verdicts; (2) failed to suppress the fruits of a search of the defendant’s vehicle; (3) failed to suppress an inculpatory statement the defendant had made to the police; (4) sentenced the defendant immediately following the verdict without first ordering a presentence investigation pursuant to Practice Book § 910; and (5) failed to follow certain procedural rules in revoking the defendant’s probation. State v. Patterson, 31 Conn. App. 278, 280, 624 A.2d 1146 (1993). The defendant addressed the judge’s absence during voir dire in his argument to the Appellate Court regarding the assertedly discriminatory peremptory challenges.
      Although the Appellate Court’s conclusion regarding the judge’s absence from the voir dire was dispositive of the appeal, the Appellate Court also discussed some of the remaining issues. The Appellate Court ruled in favor of the state on the questions of inconsistent verdicts; id., 305; and the search of the vehicle. Id., 310. The court also ruled in favor of the defendant regarding the probation revocation, and therefore reversed the judgment of revocation. Id., 312. The court did not address the defendant’s claims that the trial court had improperly: (1) sustained the state’s peremptory challenge of an African-American venireperson; (2) bypassed a presentence investigation; and (3) failed to suppress an inculpatory statement.

       We note that the Appellate Court’s remand for a new probation revocation hearing is not within our certified questions and is not directly affected by our disposition of this appeal.

       In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the United States Supreme Court held that, in a criminal trial, the state’s exercise of peremptory challenges to exclude potential jurors on the basis of race violates the equal protection clause of the United States constitution. Although in federal courts the defendant must make a prima facie showing of discrimination before the burden shifts to the state to provide a neutral explanation for the peremptory challenge; id., 97; we have dispensed with the need for the defendant to make a prima facie case. State v. Holloway, 209 Conn. 636, 646, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). The United States Supreme Court has expanded Batson to invalidate race and gender based peremptory challenges in other contexts. J.E.B. v. Alabama ex rel T.B., U.S. , 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994); Georgia v. McCollum, 505 U.S. 42, 55-56, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991); Powers v. Ohio, 499 U.S. 400, 403-404, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).

       See State v. Smith, 49 Conn. 376, 383 (1881).

       Practice Book § 848 provides: “[selection op jury]—voir dire examination
      “Each party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judicial authority before whom such examination is held is of the opinion from such examination that any juror would be unable to render a fair and impartial verdict, such juror shall be excused by the judicial authority from any further service upon the panel, or in such action, as the judicial authority determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of the trial.” (Emphasis added.) See also General Statutes § 54-82f.

       The constitution of Connecticut, article first, § 19, provides in relevant part: “The right of trial by jury shall remain inviolate . . . . In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

       Because in this appeal the state does not assert the loss of any protected interest, we confine our discussion in this regard to the interest of the defendant.

       We note that such a failure could result for different reasons. These reasons range from simple inadvertence, at one end of the spectrum, to a tactical choice based on the defendant’s own desire not to have a particular venireperson on the jury, at the other end of the spectrum.

       We do not address the question of whether, by waiving the challenge to the peremptory strike in his own case, the defendant alters the right of any excluded jurors to bring independent actions to assert their own rights.

       Courts in other jurisdictions are in agreement with our conclusion on this issue. See Way v. Wainwright, 786 F.2d 1095 (11th Cir. 1986); Brown v. State, 538 So. 2d 833 (Fla. 1989); Peri v. State, 426 So. 2d 1021 (Fla. App.), rev. denied, 436 So. 2d 100 (Fla. 1983); State v. Eberhardt, 32 Ohio Misc. 39, 282 N.E.2d 62 (1972). In Peretz v. United States, supra, 501 U.S. 923, the United States Supreme Court concluded that even if a criminal defendant has the constitutional right to demand the presence of an Article III judge at voir dire, the defendant in that case had waived the right by consenting to supervision of the voir dire by a federal magistrate. The court concluded that the defendant’s rights were sufficiently protected by a magistrate acting under the control of an Article III judge. Peretz differs from the present case, however, because in Peretz the magistrate, acting by statute as the delegate of judicial authority, was present for the entire voir dire.
      A different line of federal cases also acknowledges that a criminal defendant may waive the right to judicial supervision of a voir dire. See Haith v. United States, 342 F.2d 158 (3d Cir. 1965); Stirone v. United States, 341 F.2d 253 (3d Cir. 1965), cert. denied, 381 U.S. 902, 85 S. Ct. 1446, 14 L. Ed. 2d 284 (1965); Taylor v. United States, 386 F. Sup. 132, 144 (E.D. Pa. 1974), aff'd, 521 F.2d 1399 (3d Cir. 1975); United States v. Sams, 219 F. Sup. 164 (W.D. Pa. 1963), rev’d in part on other grounds, 340 F.2d 1014, cert. denied, 380 U.S. 974, 85 S. Ct. 1336, 14 L. Ed. 2d 270 (1965). These cases, however, predate Batson and its progeny, and also predate the practice of delegating judicial authority to a magistrate under Peretz. Thus, the cases have uncertain precedential value for this case.

       Because we conclude that the defendant waived any right to continuous judicial supervision over the voir dire, and therefore that there was no error arising out of the judge’s absence during the voir dire, we need not address whether such absence may be harmless error and whether it was harmless in this case.

       We do not decide whether the same rule applies to civil cases.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. Thomas Metz
    (14909)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.

      Argued May 11
    decision released August 2, 1994

      Monte P. Radler, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Steven Weiss, supervisory assistant state’s attorney, for the appellee (state).

      William B. Wynne filed a brief for the Connecticut Legal Rights Project, Inc., as amicus curiae.
   Peters, C. J.

The principal issue in this appeal is the proper allocation of the burden of proof to determine the continued commitment to a mental hospital of a person previously found not guilty of criminal charges by reason of mental disease or defect. The defendant, Thomas Metz, was originally charged with assault of a victim over the age of sixty in the second degree in violation of General Statutes § 53a-60b, a class D felony, and with interfering with a police officer in violation of General Statutes § 53a-167a, a class A misdemeanor. The trial court, Buzaid, J., found the defendant not guilty by reason of mental disease or defect and committed him to the custody of the commissioner of mental health, pursuant to General Statutes § 17a-582 (e) (1), for the maximum allowable period of six years.

Sixty-eight days prior to the expiration of the maximum period of commitment, the state petitioned for its extension, pursuant to General Statutes § 17a-593 (c), on the ground that the defendant continued to be mentally ill and a danger to himself or others. The trial court, Bingham, J., denied the defendant’s motions to dismiss the state’s petition and accepted the recommendation of the psychiatric security review board for the defendant’s continued commitment at the Whiting Forensic Institute. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The validity of the defendant’s initial confinement to a mental hospital is unchallenged. That confinement arose in the following procedural and factual circumstances. Because the defendant was found not guilty by reason of mental disease or defect pursuant to General Statutes § 53a-13 in the underlying criminal proceedings, he is an “acquittee” as that term is defined by General Statutes § 17a-580 (1). Although the Probate Court ordinarily has jurisdiction over the commitment to a mental hospital of a person with a mental illness who is dangerous to himself or others; General Statutes §§ 17a-497 and 17a-498; in the case of acquit-tees, the Superior Court has the authority to decide the propriety of such a confinement. General Statutes § 17a-582 (e). In deciding whether to order the commitment, the conditional discharge or the discharge of an acquittee, the governing statute enjoins the Superior Court “that its primary concern is the protection of society.” General Statutes § 17a-582 (e). The Superior Court’s order of confinement is, however, limited to “a maximum term of commitment, not to exceed the maximum sentence that could have been imposed if the acquittee had been convicted of the offense.” General Statutes § 17a-582 (e) (1) (A). In this case, the defendant was ordered to be confined in a state mental hospital for a maximum term of six years.

To contest the appropriateness of his confinement during this six year maximum term, the defendant would have had to establish, “by a preponderance of the evidence that he is a person who should be discharged.” General Statutes § 17a-582 (f). Throughout his six year maximum term, after the periodic reviews mandated by General Statutes § 17a-585, the psychiatric security review board has concurred in the professional opinion of the defendant’s treating psychiatrist that the defendant continues to be mentally ill and a danger to himself and others.

As the end of the six year maximum term of the defendant’s commitment approached, the state’s attorney petitioned the Superior Court to extend the defendant’s commitment for a further period of time on the ground that “reasonable cause exists to believe that the acquittee remains mentally ill . . . to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others . . . .” General Statutes § 17a-593 (c). In the opinion of the psychiatric security review board, to which a referral was made pursuant to § 17a-593 (d), the defendant continues to suffer from mental illness and to be a danger to himself and others.

In the trial court, the defendant moved, on two grounds, to dismiss the state’s petition to extend his commitment. As a procedural matter, he argued that the state was not entitled to invoke § 17a-593 (c) because it had not filed its petition at least 135 days prior to the expiration of his commitment, as specified by that subsection. As a constitutional matter, he argued that § 17a-593 is unenforceable to the extent that subsection (f) of that statute requires him, even after the expiration of his maximum criminal sentence, to prove that he has regained his sanity in accordance with the rules governing commitment of acquittees rather than in accordance with the rules governing civil commitments and commitments of prisoners whose term of incarceration has ended. After extensive argument and reargument, the trial court concluded that the state’s petition should be granted and that the defendant should continue to be confined at the Whiting Forensic Institute.

On appeal, the defendant renews the procedural and the constitutional issues that he raised at trial. We disagree with his contention that the state’s failure to file a petition within the time constraints of § 17a-593 (c) automatically requires dismissal of the petition. We agree, however, that he has raised serious constitutional issues with regard to the burden of proof. To avoid such constitutional jeopardy, we construe § 17a-593 (c) to require the state to bear the burden of proving the need for a period of continued commitment of an acquittee after the expiration of the maximum term specified by § 17a-582 (e) (1) (A).

I

Section 17a-593 (c) authorizes a state’s attorney to seek a court order for the continued commitment of an acquittee “[i]f reasonable cause exists to believe that the acquittee remains mentally ill or mentally retarded to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others . . . .” Although that statute specifies that such a petition be filed “at least one hundred thirty-five days prior to such expiration,” the state did not file its petition until sixty-eight days prior to the expiration of the defendant’s six year maximum term. The defendant maintains that the 135 day time period is mandatory, while the state maintains that it is merely directory. We agree with the trial court that a petition invoking § 17a-593 (c) should not be dismissed on the grounds of untimeliness unless the state’s delay has prejudiced the acquittee. In this case, the defendant has not alleged any prejudice attributable to the state’s delay in filing the petition.

Well established principles of statutory construction govern our determination of whether a statutory time period is mandatory or directory. Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993); Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .” (Citations omitted; internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., supra, 764; see Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852-57, 633 A.2d 305 (1993).

Applying these rules in the present circumstances, we conclude that the 135 day period specified in § 17a-593 (c) is directory. The defendant seeks a construction of this statute that would require automatic dismissal of a late filed state’s petition for the continued commitment of an acquittee. Thus, noncompliance with § 17a-593 (c) would effectively deprive the Superior Court of further jurisdiction over an acquittee’s continuing commitment. As in the case of time limitations on a right to appeal, “the established principle [is] that every presumption is to be indulged in favor of jurisdiction . . . [and] we require a strong showing of a legislative intent to create a time limitation that, in the event of noncompliance, acts as a subject matter jurisdictional bar.” (Citations omitted; internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 765. We can discern no such showing in either the plain language of the statute or its legislative history.

Significant to our determination is the absence in the statute of words, such as “must” or “shall,” which ordinarily express legislative mandates of a nondirec-tory nature. See Statewide Grievance Committee v. Roz-bicki, 211 Conn. 232, 240, 558 A.2d 986 (1989); Lo Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989); Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986); Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229, 233, 384 A.2d 384 (1978). This stands in contrast to other subsections of § 17a-593 that employ such definitive terminology. See, e.g., General Statutes § 17a-593 (d). The legislature, if intending the 135 day time limitation to be mandatory, could easily have expressed this intent. See State v. Ortiz, 217 Conn. 648, 654, 588 A.2d 127 (1991).

The legislative history of § 17a-593 (c) reveals that the 135 day time frame was incorporated into that statute in 1987; Public Acts 1987, No. 87-486, § 9; in order to make the psychiatric security review board “more effective and efficient.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1987 Sess., p. 1051, written testimony of Robert Berger, chair of psychiatric security review board; see also 30 S. Proc., Pt. 14, 1987 Sess., pp. 4879-80, remarks of Senator Anthony Aval-lone. "[Legislative provisions designed to secure order, system and dispatch in proceedings are ordinarily held to be directory where, as here, they are stated in affirmative terms or, to express it differently, are unaccompanied by negative words.” (Internal quotation marks omitted.) State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 280, 610 A.2d 584 (1992). We note that § 17a-593 (c) attaches no penalty for the failure of the state to comply with its provisions, nor does it otherwise require that the state seek an extension of time. See State v. White, supra, 238; Caron v. Inland Wetlands & Watercourses Commission, supra, 273-74.

Accordingly, we conclude that the 135 day time limitation of § 17a-593 (c) is directory, rather than mandatory. The trial court therefore correctly decided not to dismiss the state’s petition for the continuation of the defendant’s commitment.

II

The trial court granted the state’s petition for the continuation of the defendant’s initial commitment despite the defendant’s claim that the manner of his further commitment violated his federal and state constitutional rights to due process and equal protection of the laws. Having been confined for the maximum term specified in § 17a-582 (e) (1) (A), the defendant maintains that it is unconstitutional for his further commitment to be ordered without the procedural safeguards afforded to those whose term of incarceration has expired or who, for other reasons, have been civilly committed. The state contends, to the contrary, that the procedural constraints imposed by § 17a-593 are constitutional because the defendant’s prior criminal conduct carries with it a continuing presumption that the defendant is a danger to society. We agree with the defendant that he is entitled to greater procedural safeguards than he was afforded in this case.

A

Our examination of the specific claims made by the defendant must be informed by an understanding of the nature of the constitutional rights that he is asserting. These constitutional rights have been articulated in cases decided by the Supreme Court of the United States and applied in cases decided by this court.

Freedom from unjustified governmental intrusions into personal security and bodily freedom are basic, historically recognized liberty interests that are protected by the federal constitution. Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992); Vitek v. Jones, 445 U.S. 480, 492, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980). As a matter of federal law, “ ‘[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection’ ”; Foucha v. Louisiana, supra, 80; that is, “the nature of commitment [must] bear some reasonable relation to the purpose for which the individual is committed.” Id., 79. The United States Supreme Court has recognized involuntary commitment to a mental institution, in particular, as involving “more than a loss of freedom from confinement”; Vitek v. Jones, supra, 492; due to its stigmatizing consequences, and the potential exposure to invasive, compulsory medical and psychiatric treatment. Id.

The law of federal due process accordingly imposes significant constitutional constraints on involuntary commitments. Even for the purpose of psychiatric treatment, a state may not confine an individual, unless the individual is both mentally ill and dangerous. O’Connor v. Donaldson, 422 U.S. 563, 573-76, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). To prevail in civil commitment proceedings, “the Government . . . [must] demonstrate by clear and convincing evidence that the individual is mentally ill and dangerous.” Jones v. United States, 463 U.S. 354, 362, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983); Addington v. Texas, 441 U.S. 418, 426-27, 433, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). Although these procedural protections are directed to persons who are civilly committed, they apply as well, under federal equal protection law, to a state’s initiation of involuntary commitment proceedings for certain persons involved in the criminal justice system, such as prisoners after the expiration of their prison term; McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S. Ct. 2083, 32 L. Ed. 2d 719 (1972); Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966); and criminal defendants found not competent to stand trial. Jackson v. Indiana, 406 U.S. 715, 724, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972).

Federal law has, however, recognized that insanity acquittees are “a special class that should be treated differently from other candidates for commitment,” so as to warrant a departure from the Addington standard. Jones v. United States, supra, 463 U.S. 370. Thus, “when a criminal defendant establishes by a preponderance of the evidence that.he is not guilty of a crime by reason of insanity, the Constitution permits the Government, 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.” Id. For an insanity acquittee, the state may adopt procedures that presume the acquit-tee’s continued dangerousness and that envisage a diminished risk that a person will be committed who is not mentally ill. Id., 364-67.

Applying the principle that the commitment of insanity acquittees may be governed by rules that differ from those governing those who are civilly committed, the United States Supreme Court held, in Jones v. United States, supra, 463 U.S. 354, that the District of Columbia Code could constitutionally permit an insanity acquittee to be committed for an initially indefinite period of time, as long as his continued commitment was subject to periodic reviews that would afford him an opportunity to prove that he was no longer mentally ill or dangerous. Jones expressly did not decide whether the release provisions contained in the District of Columbia Code, which place a similar burden of proof on the insanity acquittee whenever he seeks release, comported with the requirements of due process. Id., 363 n.11. Similarly, the court expressly did not decide whether considerations of equal protection might be implicated by the District of Columbia Code’s disparate release provisions for insanity acquit-tees and other committed persons. Compare Humphrey v. Cady, 405 U.S. 504, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972) (remand necessary for lower court to review “persuasive” equal protection claim based on disparity of procedural safeguards afforded committee under Wisconsin’s Sex Crime Act as compared with other civil committees), with Heller v. Doe, U.S. , 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993) (rational basis for distinguishing between mentally ill and mentally retarded for purposes of burden of proof at civil commitment proceedings; applicability of heightened review not reached).

Returning to the commitment of insanity acquittees in Foucha v. Louisiana, supra, 504 U.S. 71, the United States Supreme Court declared unconstitutional a Louisiana statute that permitted the indefinite commitment of an insanity acquittee who was no longer mentally ill, unless he could prove that he was no longer dangerous. Foucha not only reaffirmed that a “ ‘committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous’ id., 77; but also placed a sane acquittee on an equal footing with a person who has been civilly committed for purposes of establishing the propriety of continued commitment. In both cases, the court held, the state must show “ ‘by clear and convincing evidence that the individual is mentally ill and dangerous,’ Jones [v. United States, supra, 463 U.S. 362].” Id., 80.

Neither Jones nor Foucha squarely addressed the constitutionality of placing on an insanity acquittee the burden of proving sanity in order to obtain release from involuntary commitment. The court’s holding in Foucha, nonetheless, reiterates that, once the legitimacy of an original confinement has lapsed, the state cannot impose on an acquittee a burden of proof that would “defeat [his] liberty interest under the Constitution in being freed from indefinite confinement in a mental facility.” Id., 82.

Like the state laws reviewed in these federal cases, our statutes distinguish between those who are civilly committed and those who are insanity acquittees. We have upheld the validity of such disparities in a number of cases. State v. Miller, 192 Conn. 532, 538, 472 A.2d 1272 (1984); State v. Reed, 192 Conn. 520, 529, 532, 473 A.2d 775 (1984). “The use of a less demanding measure of the quantum of evidence” for the initial confinement of acquittees than that afforded civil committees, at least to the extent of permitting the state to bear the burden of proof by a mere preponderance of the evidence, “has been constitutionally justified because of the unique status of persons acquitted by reason of insanity.” State v. Miller, supra, 538; Warren v. Harvey, 632 F.2d 925, 931 (2d Cir. 1980); State v. Warren, 169 Conn. 207, 215, 363 A.2d 91 (1975). We have acknowledged that “[t]he 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.” Warren v. Harvey, supra, 931; State v. Warren, supra, 215. “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.” Warren v. Harvey, supra, 931; see also Lynch v. Overholser, 369 U.S. 705, 715, 82 S. Ct. 1063, 8 L. Ed. 2d 211 (1962); United States v. Brown, 478 F.2d 606, 610 (D.C. Cir. 1973).

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.” State v. Reed, supra, 192 Conn. 530. 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. Id., 529-30, 532 (striking down General Statutes §§ 17-317 and 53a-47 [h], in relation to § 17-318, on equal protection grounds for disparate treatment of acquittees and prisoners in relation to burden of hospital costs).

With respect to release from confinement, this court has adopted the principle enunciated in Jones and reiterated in Foucha that, as a matter of due process, an acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. Payne v. Fairfield Hills Hospital, 215 Conn. 675, 684, 578 A.2d 1025 (1990); see also Franklin v. Berger, 211 Conn. 591, 560 A.2d 444 (1989). In dictum, we have construed § 17a-593 (f), as currently codified, as placing on an acquittee the burden of proving his entitlement to a release even after the maximum term of commitment specified in § 17a-582 (e) (1) (A) has expired. Franklin v. Berger, supra, 603. Until this case, we have not, however, considered the constitutionality of such a construction of § 17a-593 (f), either as a matter of federal constitutional law or by undertaking an independent analysis of the applicable provisions of our state constitution.

In sum, neither federal nor state case law contains dispositive precedents defining the constitutional liberty interest or the rights to equal protection of insanity acquittees who seek release after they have been committed for a period of time measured by their maximum possible criminal confinement. Specifically, there are no guiding precedents about whether it is constitutionally permissible to require an insanity acquittee to continue to be burdened by a presumption of dangerousness and insanity after expiration of a statutorily defined maximum term of commitment.

B

We consider first the defendant’s challenge to the constitutionality of the governing statutes that is premised on the fact that the evidence supporting his recommitment came only from his treating physician at Whiting. The defendant claims that by not requiring sworn certificates of at least two impartial physicians not affiliated with the hospital to which application for commitment is being made, as is required for civil committees; General Statutes § 17a-498 (c); that the procedures to continue his commitment under General Statutes §§ 17a-596 and 17a-593 violated his rights to equal protection of the laws.

We note, however, that the defendant did not avail himself of the statutory provision permitting him to obtain a separate examination “by a psychiatrist or psychologist of the acquittee’s own choice”; General Statutes § 17a-593 (e); in order to challenge the propriety of his continued commitment. “ ‘We have held that the failure to raise a procedural claim or the failure to utilize a remedy available to cure a procedural defect can constitute a waiver of the right to object to the alleged defect.’ ” Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 633, 613 A.2d 739 (1992); Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 95-96, 596 A.2d 374 (1991); see also Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 536, 560 A.2d 403 (1989); Henderson v. Dept. of Motor Vehicles, 202 Conn. 453, 461-63, 521 A.2d 1040 (1987). Accordingly, we deem this issue waived and decline to reach its merits.

C

The defendant’s alternate basis for challenging the constitutionality of § 17a-593 concerns the propriety of assigning him the burden of proving that he is no longer insane or dangerous in proceedings brought to renew his commitment after expiration of the maximum term of his initial commitment. The defendant properly raised this issue at trial. We conclude that the statute must be construed to avoid the constitutional jeopardy that the defendant has brought to our attention.

We start our analysis of § 17a-593 with the premise that “a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 391, 512 A.2d 152 (1986); Eielson v. Parker, 179 Conn. 552, 560, 427 A.2d 814 (1980); State v. Darden, 171 Conn. 677, 678, 372 A.2d 99 (1976). In construing a statute, moreover, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent. State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705-706, 553 A.2d 596 (1989).” Bartholomew v. Schweizer, 217 Conn. 671, 675-76, 587 A.2d 1014 (1991).

In this case, although § 17a-593 (c) permits a state’s attorney to petition the Superior Court to continue the commitment of an acquittee after the expiration of the maximum term of confinement specified in § 17a-582 (e) (1) (A), the statute contains limited directions about the manner in which such further commitment should be adjudicated. Pursuant to § 17a-593 (d) and (e), the court must seek the recommendation of the psychiatric security review board, and the acquittee must be permitted to challenge the validity of that recommendation. Furthermore, under § 17a-593 (f), a court hearing must proceed on any “recommendation or application for discharge or petition for continued commitment.” Although subsection (f) expressly requires the acquittee to bear the burden of establishing his right to a discharge by a preponderance of the evidence before expiration of the maximum period of commitment, it is unclear whether this subsection was intended to allocate the same burden when the state petitions for a period of additional commitment beyond that maximum term. A statutory burden to show that an “acquittee is a person who should be discharged” assumes the propriety of his commitment. That is the very question at issue in a hearing on a state’s petition for an additional period of commitment.

The latent ambiguity inherent in § 17a-593 (c) is only heightened when the subsection is viewed in context. By authorizing the state to petition for an acquittee’s continued commitment if reasonable cause exists to support such confinement, § 17a-593 (c) impliedly places a burden on the state to establish the need for continued commitment. Furthermore, the maximum period of commitment authorized by § 17a-582 (e) (1) (A) would be rendered a nullity if an indefinite commitment could be ordered at the state’s behest.

Important considerations of policy suggest that the legislature would not have intended to impose, even on an insanity acquittee, a never-ending burden of rebutting an indefinite presumption of continuing insanity and dangerousness. The considered view of professional commentators who have promulgated model rules for the commitment of insanity acquittees is that, after expiration of a stated term of commitment, fairness, convenience and symmetry require an insanity acquittee to be treated like others committed for mental illness. See ABA Criminal Justice Mental Health Standards (1989) pt. VII, pp. 435-36.

In our view, these principles of fairness are not merely guides for statutory policymakers, but implicate important constitutional principles as well. In our interpretation of § 17a-593, we are guided by the principle that we should seek to construe the statute so as not to place it in constitutional jeopardy. Bartholomew v. Schweizer, supra, 217 Conn. 675-76; State v. Floyd, supra, 217 Conn. 79; see also McConnell v. Beverly Enterprises-Connecticut, Inc., supra, 209 Conn. 705-706. Specifically, we must inquire into whether an indefinite allocation of the burden of proof on an insanity acquittee raises significant questions of equal protection.

“ ‘[T]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.’ Reynolds v. Sims, 377 U.S. 533, [565,] 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, [440,] 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Daily v. New Britain Machine Co., 200 Conn. 562, 578, 512 A.2d 893 (1986). The ‘equal protection clause does not require absolute equality or precisely equal advantages.’ Ross v. Moffitt, 417 U.S. 600, [612,] 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974); Daily v. New Britain Machine Co., supra, 577-78. Rather, a state may make classifications when enacting or carrying out legislation, but in order to satisfy the equal protection clause the classifications made must be based on some reasonable ground. Ross v. Moffitt, supra [612]; Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, [293,] 18 S. Ct. 594, 42 L. Ed. 1037 (1898); Daily v. New Britain Machine Co., supra [577-78]; State v. Reed, [supra, 192 Conn. 531]. To determine whether a particular classification violates the guarantees of equal protection, the court must consider ‘the character of the classification; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.’ Dunn v. Blumstein, 405 U.S. 330, 335, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972).” Franklin v. Berger, supra, 211 Conn. 594-95. “[T]he legislature has . . . broad discretion in the exercise of its power to enact legislation and ... its judgment in establishing statutory classifications will [ordinarily] be set aside only where no grounds can be conceived to justify them. McDonald v. Board of Election, 394 U.S. 802, 809, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969).” State v. Reed, supra, 531.

Despite the substantial degree of legislative discretion recognized by these precedents, we are of the view that the defendant has raised a serious constitutional concern in this case. After the expiration of a maximum term of confinement, it is difficult to find a constitutional justification for a categorical distinction between an insanity acquittee and an incarcerated prisoner who was transferred to a mental hospital 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”; Jones v. United States, supra, 463 U.S. 368; Payne v. Fairfield Hills Hospital, supra, 215 Conn. 684; see also Franklin v. Berger, supra, 211 Conn. 612 (Healey, J., concurring). In each instance, furthermore, the qualitative character of the liberty deprivation is the same, irrespective of the fact that the Superior Court rather than the Probate Court retains jurisdiction over the propriety of an acquittee’s continued commitment. General Statutes §§ 17a-582 (e), 17a-497 and 17a-498.

These constitutional concerns lead us to construe the maximum period of commitment authorized by § 17a-582 (e) (1) (A) as a reasonably identified point of demarcation beyond which the presumption of dangerousness initially accompanying an acquittee does not continue. Accordingly, we conclude that § 17a-593 (c) impliedly imposes the same burden on the state at a hearing for the continued commitment of an acquit-tee beyond his current definite period of commitment as is imposed in a civil commitment hearing under § 17a-498 (c); namely, to show by clear and convincing evidence that the acquittee is currently mentally ill and dangerous to himself or herself or others or gravely disabled.

Our conclusion finds additional support in the equal protection clause of our state constitution, which forbids discrimination on the ground of mental illness. If the defendant were not suffering from mental illness, the state could not constitutionally confine him beyond the maximum term of his criminal convictions. Although the state may well have a compelling interest in the continued commitment of acquittees whose mental illness makes them dangerous to themselves or others; cf. Daly v. DelPonte, 225 Conn. 499, 511-18, 624 A.2d 876 (1993); that interest arises only when the state has shouldered the burden of establishing the existence of the underlying facts. Id., 517-18. Because the underlying criminal conduct may be relatively minor, and indeed need not involve a crime of violence, the presumption of the existence of facts warranting the defendant’s commitment does not survive the expiration of the maximum term of criminal sanctions.

Finally, our conclusion is consistent with our recognition, in State v. Joyner, 225 Conn. 450, 467, 625 A.2d 791 (1993), that our state jurisprudence assigns constitutional import to a defendant’s right to present an insanity defense. Burdening the successful assertion of an insanity defense with a presumption of insanity and dangerousness that has no time constraints would seriously undermine a criminal defendant’s recourse to such a defense.

Accordingly, we conclude that the trial court’s recom-mitment of the defendant must be vacated. We will, however, stay the effective date of our order for a reasonable period of time to enable the state to ask the trial court for a new hearing at which the state will bear the burden of proving the defendant’s continued insanity and dangerousness.

The judgment is reversed.

In this opinion the other justices concurred.

       General Statutes § 17a-582 (formerly § 17-257c) provides: “confinement OF ACQUITTEE FOR EXAMINATION. COURT ORDER OF COMMITMENT TO board OR discharge, (a) When any person charged with an offense is found not guilty by reason of mental disease or defect pursuant to section 53a-13, the court shall order such acquittee committed to the custody of the commissioner of mental health who shall cause such acquittee to be confined, pending an order of the court pursuant to subsection (e) of this section, in any of the state hospitals for mental illness or to the custody of the commissioner of mental retardation, for an examination to determine his mental condition.
      “(b) Within forty-five days of the order of commitment pursuant to subsection (a) of this section, the superintendent of such hospital or the commissioner of mental retardation shall cause the acquittee to be examined and file a report of the examination with the court, and shall send a copy thereof to the state’s attorney and counsel for the acquittee, setting forth the superintendent’s or said commissioner’s findings and conclusions as to whether the acquittee is a person who should be discharged.
      “(c) Within ten days of receipt of such superintendent’s or said commissioner’s report, 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 chosen by the acquittee and shall be performed at the acquittee’s expense unless he is indigent. If the acquittee is indigent, the court shall provide him with the services of a psychiatrist or psychologist to perform the examination at the expense of the state. The superintendent or said commissioner who conducted the initial examination shall, within five days of a request of any party conducting a separate examination pursuant to this subsection, release to such party all records and reports compiled in the initial examination of the acquittee. Any separate examination report shall be filed with the court within thirty days of the filing with the court of the initial examination report by the superintendent or said commissioner.
      “(d) The court shall commence a hearing within fifteen days of its receipt of any separate examination report or if no notice of intent to perform a separate examination has been filed under subsection (c) of this section, within twenty-five days of the filing of such initial examination report.
      “(e) At the hearing, 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, make one of the following orders:
      “(1) If the court finds that the acquittee is a person who should be confined or conditionally released, the court shall order the acquittee committed to the jurisdiction of the board and either confined in a hospital for mental illness or placed with the commissioner of mental retardation, for custody, care and treatment pending a hearing before the board pursuant to section 17a-583; provided (A) the court shall fix a maximum term of commitment, not to exceed the maximum sentence that could have been imposed if the acquittee had been convicted of the offense, and (B) if there is reason to believe that the acquittee is a person who should be conditionally released, the court shall include in the order a recommendation to the board that the acquittee be considered for conditional release pursuant to subdivision (2) of section 17a-584; 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.
      “(f) At the hearing before the court, the acquittee shall have the burden of proving by a preponderance of the evidence that he is a person who should be discharged.
      “(g) An order of the court pursuant to subsection (e) of this section may be appealed by the acquittee or the state’s attorney to the appellate court. The court shall so notify the acquittee.
      “(h) During any term of commitment to the board, the acquittee shall remain under the jurisdiction of the board until discharged by the court pursuant to section 17a-593. Except as provided in subsection (c) of said section, the acquittee shall be immediately discharged at the expiration of the maximum term of commitment.
      “(i) On committing an acquittee to the jurisdiction of the board, the court shall advise the acquittee of the right to a hearing before the board in accordance with section 17a-583.”

       General Statutes § 17a-593 (formerly § 17-257n) provides: “court order to discharge acquittee prom custody, (a) The board, pursuant to section 17a-584 or 17a-592, may recommend to the court the discharge of the acquittee from custody or the acquittee may apply directly to the court for discharge from custody. The court shall send copies of the recommendation or application to the state’s attorney and to counsel for the acquit-tee. An acquittee may apply for discharge not more than once every six months and no sooner than six months after the initial board hearing held pursuant to section 17a-583.
      “(b) The recommendation or application shall contain the dates on which any prior recommendations or applications for discharge had been filed with the court, the dates on which decisions thereon were rendered, and a statement of facts, including any change in circumstances since the determination on the most recent recommendation or application, sufficient to qualify the acquittee as a person who should be discharged. A recommendation by the board shall contain findings and conclusions to support the recommendation.
      “(c) If reasonable cause exists to believe that the acquittee remains mentally ill or mentally retarded 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 application or petition, file a report with the court, and send a copy thereof to the state’s attorney and counsel for the acquittee, setting forth its findings and conclusions as to whether the acquittee is a person who should be discharged. The board may hold a hearing or take other action appropriate to assist it in preparing its report.
      “(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 acquit-tee’s own choice and shall be performed at the expense of the acquittee unless he is indigent. If the acquittee is indigent, the court shall provide him with the services of a psychiatrist or psychologist to perform the examination at the expense of the state. 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 mental illness or other suitable facility or placed with the commissioner of mental retardation.
      “(f) After receipt of the board’s report and any separate examination reports, the court shall promptly commence a hearing on the recommendation or application for discharge or petition for continued commitment. At the hearing, the acquittee shall have the burden of proving by a preponderance of the evidence that the acquittee is a person who should be discharged.
      “(g) The court shall make a finding as to the mental condition of the acquit-tee and, considering that its primary concern is the protection of society, 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.”

       General Statutes § 17a-580 (formerly § 17-257a) provides in relevant part: “definitions. As used in sections 17a-581 to 17a-602, inclusive, and this section:
      “(1) ‘Acquittee’ means any person found not guilty by reason of mental disease or defect pursuant to section 53a-13 . . . .”

       These procedures differ substantially from those that govern the confinement in mental hospitals of other persons suffering from a mental illness. Civil commitments generally not only are administered by the Probate Court but require the person proposing such confinement to establish its propriety by clear and convincing evidence. General Statutes § 17a-498 (c). Civil commitment procedures also apply to any person who, while in the custody of the commissioner of correction, manifests mental illness and dangerousness to himself and others. General Statutes § 17a-515.

       General Statutes § 17a-585 (formerly § 17-257f) provides: “periodic review by board. The board shall conduct a hearing and review the status of the acquittee not less than once every two years. At such hearing the board shall make a finding and act pursuant to section 17a-584.”

       The defendant also cites General Statutes § 17a-596 (f) for the proposition that an acquittee bears the burden of proof at a court hearing on a petition for a period of continued commitment. Section 17a-596 (f) provides that “[a]t any hearing before the [psychiatric security review] board, the acquittee, or any applicant seeking an order less restrictive than the existing order, shall have the burden of proving by a preponderance of the evidence the existence of conditions warranting a less restrictive order.” That statute is inapposite in this appeal, however, as it governs only matters before the psychiatric security review board.

       For those who may be mentally ill and dangerous, but are not acquit-tees, the mental hospital at which the person has been confined for a specified period of time may institute proceedings in Probate Court to extend the person’s commitment. General Statutes § 17a-508 (further civil commitment in general); General Statutes § 17a-520 (further civil commitment at end of term of imprisonment for criminal conduct). See footnote 4.

       Although both the state, in its petition for a continued commitment, and the psychiatric security review board, in its recommendation of a continued commitment, requested that the trial court specify a time period for the defendant’s continued confinement, the record indicates that the trial court granted the state’s petition without term. The defendant has not challenged the validity of this aspect of the trial court’s order.

       Public Acts 1987, No. 87-486, § 9, advanced the time for filing of a state’s petition for continued confinement from ninety to 135 days before the maximum period of commitment; General Statutes § 17a-593 (c); and also extended the period in which the psychiatric security review board is required to file a report with the trial court regarding such a petition from forty-five days to ninety days from the filing of the petition. General Statutes § 17a-593 (d). These changes were motivated by a concern that the psychiatric security review board could not conduct a hearing, and prepare and file a report with the trial court, in the forty-five days after filing of the petition, as was mandated by that statute prior to 1987. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1987 Sess., pp. 994-95, 1052.

       Involuntary commitment without the full protections of Addington v. Texas, supra, 441 U.S. 418, and O’Connor v. Donaldson, supra, 422 U.S. 563, has been approved in narrowly circumscribed situations. See, e.g., Jackson v. Indiana, supra, 406 U.S. 738 (state’s interest in determining whether accused may become competent to stand trial in foreseeable future justifies commitment “for [a] reasonable period of time”); McNeil v. Director, Patuxent Institution, supra, 407 U.S. 249-50 (implying short-term commitment of convicted criminal for purposes of psychiatric evaluation legitimate); cf. Vitek v. Jones, supra, 445 U.S. 495-96 (convicted felon serving sentence may not be transferred to mental institution without appropriate procedures, including notice and adversarial hearing, to prove mentally ill); see also Jones v. United States, supra, 463 U.S. 372-73 n.3 (Brennan, J., with whom Marshall and Blackmun, Js., joined, dissenting).

       The release provisions of the District of Columbia Code provide an insanity acquittee with “a judicial hearing [within fifty days of commitment] to determine his eligibility for release, at which he has the burden of proving by a preponderance of the evidence that he is no longer mentally ill or dangerous.’ ... If he fails to meet this burden at the 50-day hearing, the . . . acquittee subsequently may be released, with court approval, upon certification of his recovery by the hospital chief of service. . . . Alternatively, the acquittee is entitled to a judicial hearing every six months at which he may establish by a preponderance of the evidence that he is entitled to release. ...” (Citations omitted.) Jones v. United States, supra, 463 U.S. 357-58.

       Under the District of Columbia Code, “the basic standard for release is the same under either civil commitment or commitment following acquittal by reason of insanity: the individual must prove by a preponderance of the evidence that he is no longer dangerous or mentally ill.” Jones v. United States, supra, 463 U.S. 363 n.11. However, “[a] patient who is committed civilly is entitled to unconditional release upon certification of his recovery by the hospital chief of service . . . whereas a committed insanity acquittee may be released upon such certification only with court approval . . . .” (Citations omitted.) Id.

       In Foucha, the acquittee’s mental status was not at issue because the head of the mental facility had rendered a decision of “no mental illness” in accordance with the Louisiana statutes, thus affording the acquittee a hearing at which he bore the burden of proving, by clear and convincing evidence, that he was no longer a danger to the community. Foucha v. Louisiana, supra, 504 U.S. 73. Thus, the state was seeking to perpetuate the acquittee’s prior legitimate confinement solely on the basis of his continuing propensity for dangerousness. Id., 78.

       Two separate opinions in Franklin v. Berger, supra, 211 Conn. 591, however, specifically questioned whether an acquittee could constitutionally be required to prove his entitlement to be released once his maximum term of confinement had expired. Id., 606 (Glass, J., concurring); id., 608 n.1 (Healey, J., concurring).

       To the extent that dicta in Franklin v. Berger, supra, 211 Conn. 603, assumed that General Statutes § 17a-593 (f) allocates the burden of proof to an acquittee in a hearing for his continued commitment, we decline to convert dicta into a holding. We note that Franklin addressed neither the constitutionality of § 17a-593 (f); but see footnote 14; nor the relevant legislative history that plainly indicates the subsection was intended to place the burden of proof on an acquittee only with respect to applications for discharge. By so assigning the burden of proof, irrespective of whether the application is brought by the acquittee or by the psychiatric security review board, the 1987 amendments sought to avoid placing the board in the awkward position of representing an acquittee on an application for discharge when the acquittee was already represented by counsel. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1987 Sess., p. 1052, written testimony of Robert Berger, chair of psychiatric security review board. Such concerns do not arise in the context of a state’s petition for continued commitment. Finally, by declining to follow the Franklin dicta construing § 17a-593 (f), we do not call into question our holding in Franklin that it is not a denial of equal protection to refuse to credit pretrial jail time against the length of an insanity acquittee’s commitment to a mental hospital. Franklin v. Berger, supra, 604.

       The expressed purpose of the ABA standards “is to balance a legitimate concern for public safety against the need for fair and consistent treatment of . . . acquittees.” ABA Criminal Justice Mental Health Standards (1989) pt. VII, p. 399. Like Connecticut, the ABA recommends the setting of a maximum duration of commitment, the outer limit of which is the maximum sentence of imprisonment that an acquittee could have received following conviction. Id., p. 433.
      The disparate treatment of acquittees for purposes of their initial commitment has been severely criticized by the ABA: “A finding, at whatever level of certainty, that an acquittee was mentally disabled at the time of an alleged offense reveals little or nothing about mental condition at the time of acquittal. Months or even years may have intervened between the two events. The passage of time and, in many cases, the provision of treatment or habilitation in the interim generate a serious possibility that an acquittee’s mental condition will not have remained constant from activity through acquittal. To draw inferences from such stale information may well be seriously unfair if the consequences of the presumption of continuing dangerousness affect something as important as personal liberty.” Id., p. 424. Accordingly, the ABA would impose on the state the burden of persuasion, by clear and convincing evidence, concerning an acquittee’s current mental status and dangerousness at the initial commitment hearing, and at subsequent periodic reviews. Id., pp. 418, 437. Whatever the merits of such an argument with respect to the initial commitment, we note that the expressed concerns are significantly heightened by the inevitable passage of time and the provision of treatment or habilitation following an initial commitment. See id., p. 442.

       We note that “[w]here the [statutory] classification impinges upon a fundamental right or impacts upon an ‘inherently suspect’ group, it will be subjected to strict scrutiny and will be set aside unless it is justified by a compelling state interest. [Dunn v. Blumstein, supra, 405 U.S. 342]; Bruno v. Civil Service Commission, 192 Conn. 335, 345, 472 A.2d 328 (1984); Laden v. Warden, 169 Conn. 540, 542, 363 A.2d 1063 (1975). On the other hand, where the classification at issue neither impinges upon a fundamental right nor affects a suspect group ‘it will withstand constitutional attack if the distinction is founded on a rational basis.’ Laden v. Warden, supra, 543; see also McGinnis v. Royster, 410 U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1972); Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970).” Franklin v. Berger, supra, 211 Conn. 595. Because we construe General Statutes § 17a-593 (c) to negate the disparate treatment of acquittees from other civil committees with respect to the allocation of the burden of persuasion at a hearing for a period of continued commitment, we need not decide whether heightened review would be appropriate in a constitutional analysis of the disparate treatment of acquit-tees and civil committees in another context.

       Because the defendant’s original term of commitment has expired in this case, we need not decide whether it is possible for the validity of the presumption of dangerousness to cease before expiration of the maximum period set by the court pursuant to General Statutes § 17a-582 (e) (1) (A).

       In contrast to Connecticut’s statutory scheme, the ABA recommends that special commitment procedures apply only to those who were acquitted of “felonies involving acts causing, threatening, or creating a substantial risk of death or serious bodily harm” and that in all other circumstances the procedures afforded civil committees be employed. ABA Criminal Justice Mental Health Standards (1989) pt. VII, standard 7-7.3. As an empirical matter, no information about the propensities for future violent behavior is gained through an acquittal of nonviolent crimes and, thus, such acquit-tees are, in the ABA’s view, “sufficiently similar in relevant characteristics to general commitment patients that the same procedures for commitment and period review hearings and release [are] appropriate.” Id., pp. 413-14.

       Our conclusion also finds support in the holdings of courts in other jurisdictions that have reached similar results. See Application of Noel for Discharge Hearing, 17 Kan. App. 2d 303, 838 P.2d 336 (1992); State v. Boudreau, 605 So. 2d 608 (La. 1992); accord People v. Lally, 19 N.Y.2d 27, 224 N.E.2d 87, 19 N.Y.S.2d 654 (1966).