author: Dannehy, J.

text:
    Robert P. Goldstein v. Monika Fischer
    (12778)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued April 2
    decision released June 10, 1986

      Robert P. Goldstein, pro se, the appellant (petitioner).
   Dannehy, J.

The plaintiff applied to the Superior Court for a writ of habeas corpus to determine the custody of a minor child. The court dismissed the application for lack of personal jurisdiction. The plaintiff appealed to the Appellate Court, and we transferred the appeal here on our own motion. Practice Book § 3004A. We find no error.

The plaintiff, a layman, tried his own case and prepared and argued his appeal in this court. The defendant has not appeared either in the trial court or this court. On reviewing the record, we have followed the liberal policy usual where a layman appears pro se and have carefully considered his claims as far as they are fairly presented upon the record. See, e.g., Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982); Hartford National Bank & Trust Co. v. DiFazio, 177 Conn. 34, 39 n.2, 411 A.2d 8 (1979).

The plaintiff and the defendant are the father and mother of a child bom out of wedlock in West Germany on March 6,1982. The defendant is a West German citizen. The plaintiff, who left West Germany on July 10, 1981, learned of the defendant’s pregnancy by a letter dated October 1,1981. Shortly after March 6,1982, the defendant and the child joined the plaintiff in Connecticut. On July 31, 1982, however, the defendant returned to West Germany with the child where they continue to reside.

On September 27,1982, the plaintiff commenced an action seeking custody of the child. The defendant received notice of the action by registered mail in West Germany on October 5,1982. The defendant made no appearance in the action and judgment of dismissal was rendered on the ground that the court lacked personal jurisdiction over the defendant. The plaintiff contends on appeal that jurisdiction existed in the trial court pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA). General Statutes § 46b-90 et seq. We do not agree.

One of the central purposes of the UCCJA is to “[a]void jurisdictional competition and conflict with courts of other states in matters of child custody . . . .” General Statutes § 46b-91. While the term “state” is defined as “any state, territory or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia”; General Statutes § 46b-92 (10); the act further provides that its “general policies . . . extend to the international area.” General Statutes § 46b-113. We therefore assume, arguendo, that under appropriate circumstances the UCCJA may confer on the courts of this state jurisdiction over custody disputes involving foreign nationals living abroad. It is unnecessary to decide that issue, however, because on the facts of this case it is clear that none of the bases for jurisdiction under the UCCJA may be found to exist.

General Statutes § 46b-93 provides four separate bases for the exercise of jurisdiction by courts of this state over custody disputes involving nonresidents. The only bases for jurisdiction conceivably applicable on the facts of this case are those provided in subsection (a) (1) and (2). The statute provides in relevant part that the “superior court shall have jurisdiction to make a child custody determination by initial or modification decree if: (1) This state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child’s home state within six months before the commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships.”

General Statutes § 46b-93 (a) (1) is inapplicable because this state is not and never has been the “home state” of the child. The term “home state” is defined as “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the state in which the child lived from birth with any of such persons.” General Statutes § 46b-92 (5). The child in this case was less than five months old when she left Connecticut, and because she was born in West Germany, Connecticut is not “the state in which the child lived from birth.” Similarly, General Statutes § 46b-93 (a) (2), which requires both that the child have a “significant connection with this state” and that “there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships,” is not available to confer jurisdiction. The record in this case satisfies neither of these requirements.

Although the plaintiff has complied with the notice provisions of General Statutes § 46b-95, mere notice of an action is not sufficient to confer personal jurisdiction over a nonresident defendant. Robertson v. Robertson, 164 Conn. 140, 144, 318 A.2d 106 (1972). Such jurisdiction over a nonresident requires statutory authorization. See Jones v. Jones, 199 Conn. 287, 290-91, 507 A.2d 88 (1986); Frazer v. McGowan, 198 Conn. 243, 246, 502 A.2d 905 (1986). For custody disputes, the prerequisites to jurisdiction over a nonresident defendant are set forth in General Statutes § 46b-93. As noted, none of these prerequisites have been met. The trial court properly dismissed the action for want of personal jurisdiction.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 46b-91. purposes of act; construction of provisions, (a) The general purposes of this chapter are to: (1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being; (2) promote cooperation with the courts of other states to the end that a custody decree is rendered in a state which can best decide the case in the interest of the child; (3) assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; (4) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; (5) deter abductions and other unilateral removals of children undertaken to obtain custody awards: (6) avoid relitigation of custody decisions of other states in this state insofar as feasible; (7) facilitate the enforcement of custody decrees of other states; (8) promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and (9) make uniform the laws of the states which enact The Uniform Child Custody Jurisdiction Act.”

       “[General Statutes] Sec. 46b-93. jurisdiction, (a) The superior court shall have jurisdiction to make a child custody determination by initial or modification decree if: (1) This state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child’s home state within six months before the commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships; or (3) the child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or (4) (A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (2) or (3) of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) it is in the best interest of the child that this court assume jurisdiction.
      “(b) Except under subdivisions (3) and (4) of subsection (a) of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
      “(c) Physical presence of the child is not a prerequisite for jurisdiction to determine his custody.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Fillippo Lucisano v. Clemencia Lucisano
    (12145)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued April 3
    decision released June 10, 1986

      Max F. Brunswick, with whom, on the brief, was Lauren Ann McCurry, legal intern, for the appellant (plaintiff).
   Shea, J.

This appeal concerns a provision of a separation agreement that was not incorporated into a judgment of legal separation. The plaintiff, Fillippo Lucisano, and the defendant, Clemencia Lucisano, executed a separation agreement on November 14,1980. On the same date, the trial court, Moraghan, J., rendered a judgment of legal separation. On July 27,1981, a judgment of dissolution of the marriage was entered by the court, Gem, J., which specifically reaffirmed the terms of the judgment of legal separation.

Prior to their legal separation, the parties had reached an agreement with respect to certain real property of the plaintiff located in New York. This agreement, later specifically included in the separation agreement, provided that the plaintiff would convey a one half interest in the property to the defendant, but would retain exclusive control and possession of the property, as well as the sole right to collect rents therefrom. The court, Moraghan, J., did not, however, incorporate this provision of the separation agreement into the judgment of legal separation and, therefore, it was not included in the judgment of dissolution.

Sometime in 1982 the defendant commenced in New York a partition action against the plaintiff seeking the forced sale of the income producing property that was the subject of the provision in the separation agreement that had not been included in the judgment of dissolution. On March 3,1983, the plaintiff moved to open the judgment of dissolution seeking modification of the judgment to include the provision granting the sole right to rents from the property to him. The plaintiff claimed that he could not adequately defend the partition action unless the judgment were modified to include this provision. The court, Lavery, J., denied the plaintiffs motion, without issuing a written memorandum of decision, concluding that the motion to open the judgment had not been timely filed and that the plaintiff had failed to establish, as a basis for excusing his tardiness, that the defendant had procured the agreement through fraud. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980).

The plaintiff has appealed, claiming that the court, Moraghan, J., committed error by failing to incorporate the provision of the separation agreement dealing with the New York property without an express finding that the provision was unfair, and that, therefore, the court, Lavery, J., should have opened the judgment of dissolution. The plaintiff argues that General Statutes § 46b-66 mandates that the entire separation agreement be incorporated by reference, except for those portions expressly found by the trial court to be unfair. A necessary corollary of this argument is that § 46b-66 should prevail over Practice Book § 453, which forbids incorporation by reference and requires that the trial court specifically recite in the judgment any portion of the separation agreement it intends to include. We find it unnecessary to reach these claims because of the plaintiffs failure timely to appeal from the judgments of legal separation and dissolution or to file timely motions to open the judgments. We note that the plaintiff does not argue on appeal that the court, Lavery, J., erred in its conclusion that the agreement was not procured by fraud.

At the time the judgment of legal separation was rendered, the court, Moraghan, J., designated specific provisions of the separation agreement that were to be incorporated into the decree of separation and did not include the provision relating to the New York property. The court made no determination that any provisions of the agreement not incorporated were unfair and, in fact, concluded that “the balance of the [separation] agreement may be part of the file and survive the entry of the decree.” Neither party expressed any criticism of the court’s judgment. Immediately after the court rendered judgment, the defendant’s counsel prepared a judgment file that included the provision concerning the New York property. The judgment file was signed by the plaintiff’s counsel but was never signed by the court. See Practice Book § 338. A second judgment file not containing the provision was prepared by the defendant’s counsel in May, 1981, which was submitted to and signed by the court. The plaintiff claims that he neither saw this second judgment file nor signed it. He asserts, therefore, that the defendant’s conduct in submitting the initial judgment file to him was a sufficient reason not to appeal the court’s judgment because the first judgment file, the only one of which he claims to have been aware, included the provision concerning the New York property. The plaintiff also argues that he should not be bound by the requirement that a motion to open a judgment be filed within four months succeeding the date on which judgment was rendered; Practice Book § 326; because there was no need for him to seek correction of the judgment of separation until the defendant instituted the partition action in New York. We are persuaded by neither of these assertions.

The filing requirements prescribed by the Practice Book cannot be abrogated by claims of a party that he was misled by an opposing counsel or by a party’s perception that appeal is unnecessary during the appropriate appeal period. The fact that the need for an appeal may not have been evident until after the mandated filing period passed is not a circumstance that impels us to bypass the requirements of our rules of practice. The plaintiff was aware, at the time the court, Moraghan, J., recited the provisions of the separation agreement which were to be specifically incorporated into the judgment of separation, and again when the court, Geen, J., reaffirmed the earlier decree, that the provision concerning the New York realty was not included. Although the inclusion of the provision in the proposed judgment file that was never signed by the court might have confused the plaintiff, he still was required to file an appeal from the judgments, or to move to open the judgments within the allotted time period. The judgment file is merely a clerical document, and has no significance in the calculation of the appeal period, as the pronouncement by the court of the adopted provisions of the separation agreement is the judgment. See State v. Lindsay, 109 Conn. 239, 243, 146 A. 290 (1929); Sisk v. Meagher, 82 Conn. 376, 377, 73 A. 785 (1909); Gayda v. Schenarts, 12 Conn. Sup. 53 (1943).

Although our resolution makes it unnecessary to consider the conflict, if any, between Practice Book § 453 and General Statutes § 46b-66, we take this occasion to clarify a misconception of the plaintiff, upon which it appears this action was based. A decree of dissolution merely delineates certain conditions that are subject to the contempt power of the court. See Mays v. Mays, 193 Conn. 261, 263-64, 476 A.2d 562 (1984). The judgment does not extinguish the wholly independent separation agreement. Unless the court reviewing the agreement declares otherwise, it remains as a valid contract between the parties. On appeal, the plaintiff claims that the failure of the trial court to incorporate the provision regarding the New York property has resulted in a “miscarriage of justice” because if it had been incorporated he would be able to defend the New York partition action instituted by the defendant by pleading the Connecticut judgment, to which the New York court would be required to give full faith and credit. We fail to see the injustice claimed, however, because the plaintiff is still free to plead the separation agreement to prevent the partition.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 46b-66. (Formerly Sec. 46-49). review op agreements; incorporation into decree. In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld.”

       “[Practice Book] Sec. 453. —complaints and judgments
      “Every complaint in a dissolution of marriage action shall state the date and place, including the city or town, of the marriage and the facts necessary to give the court jurisdiction, substantially in accordance with Form 504.1; and all judgments of dissolution of marriage shall state such date and place and the jurisdictional facts as found by the court upon the hearing. Any provisions of a stipulation or other agreement between the parties that are approved by the court shall be recited specifically in the judgment and shall not be incorporated by reference. . . .”

       We note that the defendant is not represented by counsel on appeal.

       We note that a trial court may modify a decree of dissolution more than four months after its rendition in cases where it retains continuing jurisdiction. Practice Book § 326. Under General Statutes § 46b-86 a trial court has continuing jurisdiction to modify, unless the decree excludes modification, any order for periodic payment of alimony or support based upon a showing of a “substantial change in the circumstances of either party.” The statute expressly provides that it does not apply “to any assignment of the estate or a portion thereof of one party to the other party . . . .” It is therefore inapplicable to the provision at issue in this ease.


author: Peters, C. J.

text:
    State of Connecticut v. Geraldine E. Putnoki
    (12567)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 30
    decision released June 17, 1986

      Thomas C. White, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom were James G. Clark, deputy assistant state’s attorney, and, on the brief, John J. Kelly, chief state’s attorney, for the appellee (state).
   Peters, C. J.

This case principally concerns the proper interpretation and application of General Statutes (Rev. to 1983) § 53a-47, which governed the confinement, evaluation, and release of individuals who have been found guilty of an offense, but not criminally responsible because of mental disease or defect.* The defendant, Geraldine Putnoki, was found guilty of, but not criminally responsible for, manslaughter in the first degree and was ordered placed in the custody of the commissioner of mental health for twelve years. The defendant appeals from the order of confinement.

The underlying facts are undisputed. On March 21, 1983, while pregnant with her third child, the defendant stabbed her mother-in-law to death. Following a psychiatric examination of the defendant, the trial court found the defendant incompetent to stand trial on May 26, 1983. On November 7, 1983, a competency hearing was held at which the defendant’s treating psychiatrist at Fairfield Hills State Hospital testified that, although the defendant required further inpatient treatment, she was able to prepare for trial and to assist in her own defense. The trial court accordingly found her competent to stand trial, but ordered the defendant to remain in Fairfield Hills Hospital as an inpatient. On April 27, 1984, following a trial to the court, the defendant was found guilty of, but not criminally responsible for, the killing of her mother-in-law. In accordance with the procedures outlined in § 53a-47 (a) (1), the trial court then ordered the defendant temporarily committed to Fairfield Hills Hospital for an examination to determine her mental condition.

In June of 1984, two psychiatrists submitted reports to the court. Dr. W. Fernando, the defendant’s treating psychiatrist at Fairfield Hills Hospital, reported that the defendant “has a biological predisposition to suffer from recurrent depression of psychotic [proportions] under severe stress,” and “a vulnerability to become depressed and possibly psychotic during periods of stress.” He concluded that, in his opinion, the defendant could be released from the hospital with “minimal” danger to herself or to others if she received “appropriate psychiatric care which should consist of outpatient chemotherapy, psychotherapy, family therapy, [and] probation for a stipulated period of time.”

A second psychiatrist, Dr. Jeremy August, who had examined the defendant several times at her request, reported that the defendant’s mental illness was currently in remission, although she would “[m]ost likely ... at some point in the future suffer a relapse of her depressive illness, with or without psychotic symptoms.” He concluded that in her present “compensated state” she did not present a danger to herself or to others, but, noting abnormalities on her EEG (electroencephalogram), recommended that she continue to take her prescribed medications and even suggested that an additional anticonvulsant drug be prescribed.

Following receipt of these reports, the trial court held a formal hearing pursuant to § 53a-47 (a) (4). Both psychiatrists testified at this hearing, as did the defendant’s husband. Dr. Fernando testified that, as an inpatient, the defendant was daily taking both Ludiomil, an antidepressant drug, “to prevent her from lapsing into depression,” and Haldol, an antipsychotic drug, “to prevent her from relapsing into psychosis,” and was also receiving both individual and group psychotherapy. He stated that, although there was no cure for her illness, the medication she was receiving “corrects the chemical imbalance which is responsible for the symptoms . . . and thereby improves [her] inside judgment, orientation, memory and all the aspects of thinking and functioning.” He reiterated his opinion that the defendant’s release would pose only a “minimal” risk of danger to herself or to others as long as she continued to receive her prescribed medication and therapy, but that she might be dangerous if such treatment were discontinued.

Dr. August testified that “where [the defendant] is not depressed and psychotic, she is not a violent person . . . [but] [w]hen she is crazy, I think anything goes.” He stated that, in his opinion, she was no longer mentally ill and that he “wouldn’t be surprised” if she no longer needed medication. He concluded that she was “low on the list of potentially dangerous persons,” and believed that she could be released without danger to herself or to others.

At the end of the hearing, the trial court ruled that the state had sustained its burden of establishing by a preponderance of the evidence that the defendant was “potentially a danger to herself or others at the present time.” In reaching this conclusion, the court focused on testimony that the defendant was being kept “in a locked ward” at the hospital and was “continually under medication,” and that “no attempt [had been made] to take her off medication and see what the reaction [would be].” The court noted that Dr. Fernando’s stated opinion that the defendant’s release would constitute only a minimal danger was expressly conditioned on her continuing to receive “appropriate chemotherapy, psychotherapy, family therapy and [to] be on probation for a stipulated period of time.” Concluding that § 53a-47 (a) (4) prohibited the imposition of conditions upon release but instead required either unconditional release or further confinement, the court ordered the defendant confined to Fairfield Hills Hospital for a maximum of twelve years or until release was determined to be warranted under the ongoing review provisions contained in § 53a-47 (c).

In appealing from the order of confinement, the defendant claims that the trial court erred: (1) in interpreting § 53a-47 to prohibit conditional release from confinement; (2) in concluding that the state had established by a preponderance of the evidence that the defendant was mentally ill to the extent that her release would constitute a danger to herself or to others; and (3) in certain evidentiary rulings. We find error and remand for a new hearing.

The defendant initially claims that the trial court’s interpretation of § 53a-47 to prohibit conditional release was erroneous. During her presentation of evidence at the July, 1984 hearing and again during closing arguments to the court, the defendant argued that § 53a-47 (f) gave the trial court the option of releasing the defendant under appropriate conditions. The trial court disagreed, ruling that although § 53a-47 (a) (1) expressly authorized the court to order a conditional release immediately after trial, § 53a-47 (a) (4) did not provide the court with a similar option at a hearing following confinement for evaluation. Consequently, the trial court refused both to permit the defendant to introduce any evidence relevant to a conditional release or to consider such an option in evaluating the advisability of releasing the defendant from confinement.

Our resolution of the issue before us requires us to examine the language of subsection (f) of § 53a-47, which authorized conditional release, and then to determine its applicability to subsection (a), which established procedures for the evaluation, confinement, and release of a person who has been adjudged guilty of, but not criminally responsible for, an offense because of mental illness or defect. In doing so, we are mindful that “[t]he fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature.” State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); 2A Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05.

Our examination of the relevant language of § 53a-47 convinces us that subsection (f) permitted a trial court, in its discretion, to order a conditional release from confinement whenever it determined that release under this statute was appropriate, regardless of the stage in the proceedings at which the release was to occur. In reaching the opposite conclusion, the trial court focused exclusively on the contrast between the express reference to the conditional release option contained in subsection (a) (1) and the absence of such a reference in subsection (a) (4). Although, standing alone, such an inconsistency may signal a legislative intent to permit conditional release in the former instance while prohibiting it in the latter, we believe that such a construction is foreclosed by the plain language of subsection (f) itself. See Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). That subsection provided that “[t]he court may order that a person released pursuant to this section be released under such conditions and supervision as the court deems appropriate to his situation . . . .” (Emphasis added.) It is apparent from a review of the statute in its entirety that the words “this section” contained in subsection (f) referred to section 53a-47 as a whole, and not to any particular subsection. Significantly, there was no statutory language which expressly limited the application of this conditional release option to one particular stage of the proceedings to the exclusion of any other stage. The unqualified wording of subsection (f), therefore, compels the conclusion that the legislature intended to vest the trial court with the discretion to order conditional release from confinement whenever it contemplated a release under § 53a-47.

This interpretation is strengthened by the legislative history of Public Acts 1981, No. 81-301, § 2, which amended § 53a-47 to list explicitly a number of conditions available to a trial court considering the release of an individual under this statute. Speaking in support of this amendment on the Senate floor, Senator Howard T. Owens, Jr., stated: “The defendants, under existing law, who are acquitted on the grounds of insanity, must be temporarily committed for psychiatric evaluation and then the court determines what has to be done after that. This Bill specifies that the court may require [some] of these options and it sets forth [that] these are out-patient treatment . . . and so forth.” (Emphasis added.) 24 S. Proc., Pt. 7, 1981 Sess., pp. 2412-13. There is nothing in these remarks or in any part of the history of the amendment to suggest an intent to limit the applicability of these options to the period immediately posttrial. On the contrary, the legislature intended to expand the options available to a trial court whenever it was faced with the difficult task of deciding whether to release a person who has been adjudged guilty of, but not criminally responsible for, an offense.

Accordingly, in the face of this expression of legislative intent, we hold that a trial court was vested with authority under subsection (f) to impose conditions on any release ordered pursuant to § 53a-47. The trial court therefore erred in concluding to the contrary and in failing to consider the possibility of a release with conditions when it weighed its available options relative to its disposition of the defendant’s case.

It is apparent from the record of the trial court proceedings that the court’s underlying determination of the defendant’s dangerousness was colored by its erroneous reading of § 53a-47 to prevent the imposition of conditions upon release. Both the transcript of the July hearing and the memorandum of decision which followed suggest that the court believed that the defendant constituted a danger to herself or to others if she failed to receive her prescribed medication, therapy, and supervision. See State v. Warren, 169 Conn. 207, 211-14, 363 A.2d 91 (1975). In making its ultimate finding of dangerousness, the court referred specifically to medical testimony recommending continued medication and therapy, and concluded, “[cjertainly without supervision to insure that the recommendations of Dr. Fernando are carried out, the risk of unsupervised release at this time would not be justified.” (Emphasis added.) Because of the court’s erroneous belief that its only available options were either to release the defendant unconditionally or to find her dangerous and order her confined in a mental hospital, it chose the latter.

We have no way of knowing what the court would have concluded had it correctly interpreted its statutory authority to impose conditions upon release. Consequently, because the trial court’s ultimate finding of dangerousness was tainted by its erroneous interpretation of the statutory standard under which it was operating, we vacate the original finding and remand for a new hearing.

The defendant, however, while agreeing that the original finding of dangerousness should be vacated, argues that the trial court is now foreclosed from reconsidering the question of her mental status because the evidence presented at the original hearing was insufficient to establish either that she was mentally ill or that her release would constitute a danger. The crux of the defendant’s claim in this regard is that neither of the two testifying psychiatrists stated unequivocally that she was mentally ill or that there was a reasonable probability that she would pose a danger if released. Implicit in this argument are two assumptions: that the determination of dangerousness is a medical rather than a legal decision, and that the trial court was bound by the testimony and conclusions of the psychiatrists. Both assumptions are incorrect.

Although a trial court may choose to attach special weight to the testimony of medical experts at a hearing to determine mental status, the ultimate determination of mental illness and dangerousness is a legal decision. DeVeau v. United States, 483 A.2d 307, 312 (D.C. App. 1984); State v. Paradis, 123 N.H. 68, 71, 455 A.2d 1070 (1983); State v. Krol, 68 N.J. 236, 261, 344 A.2d 289 (1975); American Psychiatric Association, Clinical Aspects of the Violent Individual, Task Force Report 8, pp. 26, 33 (July, 1974); Katz, “The Right to Treatment—An Enchanting Legal Fiction,” 36 U. Chi. L. Rev. 755, 765 (1969). Partly because definitions of dangerousness are necessarily vague; Cocozza & Steadman, “The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence,” 29 Rutgers L. Rev. 1084,1085 (1976); and partly because there are no “psychological or physical signs or symptoms which can be reliably used to discriminate between the potentially dangerous and the harmless individual”; Diamond, “The Psychiatric Prediction of Dangerousness,” 123 U. Pa. L. Rev. 439, 444 (1974); psychiatric predictions of future dangerousness are tentative at best and are frequently conceded, even within the profession, to be unreliable. Stone, Law, Psychiatry and Morality (1984) pp. 107-108, 170 (1984); Slobogin, “Dangerousness and Expertise,” 133 U. Pa. L. Rev. 97, 110-17 (1985); Cocozza & Steadman, supra, 1085, 1097-98; Diamond, supra, 451. Consequently, both the American Psychiatric Association; see American Psychiatric Association, Clinical Aspects of the Violent Individual, supra, pp. 26, 33; Stone, supra, 107-108; Cocozza & Steadman, supra, 1100; and the American Bar Association; see American Bar Association, Proposed Criminal Justice Mental Health Standards (First Tentative Draft, July, 1983) Standard 7-3.9 (b); have cautioned against the unfettered reliance in the criminal justice context on expert psychiatric predictions of future dangerousness as a predicate to the release from confinement of persons who have been adjudged guilty of, but not criminally responsible for, a criminal offense.

In addition, the goals of a treating psychiatrist frequently conflict with the goals of the criminal justice system. DeVeau v. United States, supra, 312; Stone, supra, 140-41. While the psychiatrist must be concerned primarily with therapeutic goals, the court must give priority to the public safety ramifications of releasing from confinement an individual who has already shown a propensity for violence. As a result, the determination of dangerousness in the context of a mental status hearing reflects a societal rather than a medical judgment, in which the rights and needs of the defendant must be balanced against the security interests of society. State v. Paradis, supra, 71; State v. Krol, supra, 261; see American Psychiatric Association, Clinical Aspects of the Violent Individual, supra, p. 26. The “awesome task” of weighing these two interests and arriving at a decision concerning release rests finally with the trial court. Dixon v. Jacobs, 427 F.2d 589, 600 (D.C. Cir. 1970).

Although psychiatric testimony as to the defendant’s condition may form an important part of the trial court’s ultimate determination, the court is not bound by this evidence. Seymour v. Seymour, 180 Conn. 705, 712, 433 A.2d 1005 (1980); DeVeau v. United States, supra, 315-16; In re Fleming, 431 A.2d 616, 618 (Me. 1981); State v. Paradis, supra, 71; State v. Krol, supra, 261. It may, in its discretion, accept all, part, or none of the experts’ testimony. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983); Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Seymour v. Seymour, supra, 712. In reaching its difficult decision, the court may and should consider the entire record available to it, including the defendant’s history of mental illness, his present and past diagnoses, his past violent behavior, the nature of the offense for which he was prosecuted, the need for continued medication and therapy, and the prospects for supervision if released. State v. Cuvelier, 175 Conn. 100, 109, 394 A.2d 185 (1978); DeVeau v. United States, supra, 314-15; Taylor v. Commissioner of Mental Health, 481 A.2d 139, 146-47 (Me. 1984); State v. Krol, supra, 261.

An examination of the record in the present case reveals that there was ample evidence from which the trial court could reasonably have concluded that the defendant was mentally ill to the extent that her release without continued medication and therapy would constitute a danger to herself or to others. The defendant’s treating psychiatrist testified that, although there was no actual “cure” for her depression and psychosis, the medication she was receiving had been successful in correcting the underlying “chemical imbalance which [was] responsible for the symptoms.” He repeatedly conditioned his recommendation that she be released on her continued receipt of her prescribed medication, psychotherapy, and supervision, stating that if these conditions were observed, the likelihood of her becoming violent was “minimal.” He stated, however, that if she stopped taking her medication she might become dangerous, although he considered this unlikely.

The fact that neither psychiatrist testified that it was “probable” that the defendant would become dangerous without continued treatment and medication did not, as the defendant argues, prevent the trial court from reaching a different conclusion. The court was aware that, slightly more than a year earlier, the defendant had committed an extremely violent act in stabbing to death her invalid mother-in-law. It was aware also that, in the intervening period, she had been an inpatient in a “locked ward” at a mental hospital, under continual supervision and receiving daily doses of antidepressant and antipsychotic drugs, and that her doctor’s recommendation for her release was premised on her receiving continued treatment. Under these circumstances, it was not unreasonable for the trial court to have concluded that it was more probable than not that the defendant’s progress was dependent on her medication and therapy, and that the risk of a violent relapse upon release without medication or supervision was too great to take. See State v. Warren, supra, 211-14. The evidence presented was therefore sufficient to support the finding, and the trial court is accordingly not foreclosed from again considering the defendant’s mental condition upon remand.

In the new hearing which must be held, it will of course be necessary for the trial court to base its decision as to the advisability of the defendant’s discharge on an examination of her present mental condition. See In re Juvenile Appeal (83-BC), 189 Conn. 66, 80, 454 A.2d 1262 (1983); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 675-76, 420 A.2d 875 (1979); Taylor v. Commissioner of Mental Health, supra, 155; State v. Krol, supra, 266. An individual’s mental and emotional status does not remain static but responds to numerous external and internal forces. If the court determines that it should order the defendant’s continued confinement or her conditional release subject to court supervision, any further proceedings with regard to the defendant’s mental condition will be governed by Public Acts 1985, No. 85-506. See Public Acts 1985, No. 85-506, § 23.

There is error, the judgment is vacated and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       At the time of the defendant’s arrest and arraignment, General Statutes (Rev. to 1983) § 53a-47 provided in relevant part: “disposition of PERSON FOUND GUILTY BUT NOT CRIMINALLY RESPONSIBLE BECAUSE OF MENTAL DISEASE OR DEFECT. CONFINEMENT AND EXAMINATION. RELEASE, (a) (1) When any person charged with an offense is found guilty but not criminally responsible on the grounds of mental disease or defect, the court shall order such person to be temporarily confined in any of the state hospitals for mental illness for a reasonable time, not to exceed ninety days, for an examination to determine his mental condition, except that, if the court can determine on the basis of the evidence already before it, that such person is not mentally ill to the extent that his release would constitute a danger to himself or others, the court may order his immediate release, either unconditionally or conditionally pursuant to subsection (f). (2) The person to be examined shall be informed that, in addition to the examination provided for in subdivision (1), he has a right to be examined during such confinement by a psychiatrist of his own choice. (3) Within sixty days of the confinement pursuant to subdivision (1), the superintendent of such hospital and the retained psychiatrist, if any, shall file reports with the court setting forth their findings and conclusions as to whether such person is mentally ill to the extent that his release would constitute a danger to himself or others. Copies of such reports shall be delivered to the state’s attorney or prosecutor and to counsel for such person. (4) Upon receipt of such reports, the court shall promptly schedule a hearing. If the court determines that the preponderance of the evidence at the hearing establishes that such person is mentally ill to the extent that his release would constitute a danger to himself or others, the court shall confine such person in a suitable hospital or other treatment facility.
      “(b) Whenever a person is committed for confinement pursuant to subdivision (4) of subsection (a), his confinement shall continue until he is no longer mentally ill to the extent that his release would constitute a danger to himself or others, provided the total period of confinement, except as provided in subsection (d), shall not exceed a maximum term fixed by the court at the time of confinement, which maximum term shall not exceed the maximum sentence which could have been imposed if the person had been convicted of the offense. Where the offense is a class A felony, such maximum term shall be twenty-five years.
      “(c) (1) Upon certification by the superintendent of the hospital or institution that, in his opinion, such person is no longer mentally ill to the extent that his release would constitute a danger to himself or others, the court may order the release of the person confined at the expiration of thirty days from the time such certificate is filed. (2) At the time such certificate is filed with the court, a copy shall be furnished to the state’s attorney or prosecutor who may request a hearing as to whether such person should be released. At such hearing, evidence of mental condition may be submitted. The confined person shall be released unless the state establishes by a preponderance of the evidence that such person is, at the time of hearing, mentally ill to the extent that his release would constitute a danger to himself or others. (3) The superintendent shall, during such confinement, submit to the court at least every six months a written report with respect to the mental condition of such person. Copies of such report shall be furnished to the state’s attorney or prosecutor and counsel for the confined person. The court, upon its own motion or at the request of the parties, may at any time hold a hearing to determine whether such person should be released prior to the expiration of the maximum period, in accordance with the standards set forth in subdivision (1), provided such a hearing shall be held at least every five years.
      “(d) At the expiration of such maximum period the superintendent of such hospital or institution shall, if the person is still confined there, release him, unless the following procedure for an order of continued confinement has been instituted. At any time within ninety days prior to such expiration, the state’s attorney or assistant state’s attorney for the judicial district in which the person was tried, or in which the circuit or geographical area is located if such person was tried in the circuit court or the court of common pleas, may petition the court for an order of further confinement on the grounds that release of the person would constitute a danger to life or person. The court shall thereupon hold a prompt hearing, after due notice to the person confined. At such hearing the state shall have the burden of proving by a preponderance of the evidence that such person’s continued confinement is warranted because he is mentally ill to the extent that his release would constitute a danger to life or person. If the court so finds, the court shall order the continued confinement of the person until such time as it is determined that his release would not constitute a danger to life or person; provided the provisions of subsections (c) and (e) shall be applicable to persons so confined.

        “(e) In each of the hearings provided for in this section the mentally ill person shall have a right to be present, to be represented by counsel and to present evidence. If he fails or refuses to obtain counsel, the court shall appoint counsel to represent him. Such person may call a psychiatrist to examine him and testify at any such hearing. The participation of such psychiatrist shall be at the confined person’s expense unless he is financially unable to retain one, in which case the court shall assist him in obtaining a psychiatrist’s services at the expense of the state.
      “(f) The court may order that a person released pursuant to this section be released under such conditions and supervision as the court deems appropriate to his situation, which may include treatment on an outpatient basis, the taking of medication or supervision by the office of adult probation for a period not to exceed the maximum term provided in subsection (b) of this section.”
      Although this statute had been amended prior to the defendant’s hearing, the court applied this version, which had been in effect at the time of the defendant’s arrest and arraignment.

       Prior to 1981, a criminal defendant who prevailed on an insanity defense was deemed to be “acquitted on the grounds of mental disease or defect.” Public Acts 1981, No. 81-301, § 2, changed this standard to “guilty but not criminally responsible on the grounds of mental disease or defect.” This standard was changed again in 1983 to its present form, “not guilty by reason of mental disease or defect,” by Public Acts 1983, No. 83-486, § 2. This public act also shifted the burden of proof in a § 53a-47 hearing from the state to the defendant to establish by a preponderance of the evidence that he is not mentally ill to the extent that his release would constitute a danger to himself or others. This change became effective on October 1, 1983, prior to the defendant’s hearing but after formal proceedings had been instituted against her. Accordingly, all parties proceeded under the previous version of the statute which placed the burden of proof on the state.

       At the time of the hearing, General Statutes § 53a-47 (c) provided for periodic review of the mental condition of anyone confined pursuant to § 53a-47, and also gave such person the right to request a hearing at any time to determine whether he should be released. Counsel for the defendant stated at oral argument before this court that the defendant has neither requested nor received such a hearing subsequent to the July, 1984 hearing at issue in this case.

       The defendant claims that the trial court erred in excluding both testimony of the defendant’s husband concerning his wishes for his wife’s release and letters submitted to the court in support of the husband’s character. The defendant offered both the testimony and the letters in an attempt to establish that her husband would be supportive of the defendant if she were released, claiming that this evidence “would tend to be probative of continuing supervision and care of her, if that should be required.” The trial court sustained the state’s objection to this evidence on relevancy grounds, stating that, since the court was without authority to order the defendant’s release with conditions, such evidence was irrelevant to the proceedings. Since we decide today that the trial court had the authority to impose conditions on the defendant’s release, the exclusion of the evidence, for that reason at least, was erroneous.
      The defendant also claims error in the trial court’s exclusion of a treatment plan drawn up by the defendant’s psychiatrists at Fairfield Hills Hospital. We decline to review this claim on appeal because the defendant failed to take an exception to the trial court’s ruling, as required by Practice Book § 288. See Deer Island Assn. v. Trolle, 181 Conn. 201, 203-204, 435 A.2d 10 (1980).

       Public Acts 1981, No. 81-301, provides in relevant part: “Sec. 2. Section 53a-47 of the general statutes is repealed and the following is substituted in lieu thereof . . . . (f) The court may order that [such] a person released pursuant to this section be released under such conditions and supervision as the court deems appropriate to his situation, which may include treatment on an outpatient basis, the taking of medication or supervision by the office of adult probation for a period not to exceed the maximum term provided in subsection (b) of this section.”

       The state concurs with the defendant that the evidence was insufficient to support the trial court’s finding. We are not, however, bound by the state’s concession. State v. Avery, 199 Conn. 377, 379 n.2, 507 A.2d 464 (1986).

       The proposed § 7-3.9 (b) of the American Bar Association Criminal Justice Mental Health Standards (First Tentative Draft, July, 1983) would go even further and make expert opinion of future dangerousness inadmissible: “Standard 7-3.9. ADMISSIBILITY OF EXPERT TESTIMONY CONCERNING A PERSON’S MENTAL CONDITION OR BEHAVIOR .... (b) Admissibility of expert testimony concerning a person’s future mental condition or behavior. An expert opinion stating a conclusion that a particular person will or will not engage in dangerous behavior in the future should not be admissible in any criminal proceeding or in any special commitment hearing involving a person found not responsible under the criminal


author: Callahan, J.

text:
    State of Connecticut v. Albert P. DeAngelis, Jr.
    (12127)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued February 4
    decision released June 17, 1986

      John J. Keefe, Jr., with whom, on the brief, were Hugh F. Keefe and Charles E. Tieman III, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, MichaelDearington, assistant state’s attorney, and David Teitelman, legal intern, for the appellee (state).
   Callahan, J.

The defendant was charged in an indictment with the crime of murder in violation of General Statutes § 53a-54a (a). The charge resulted from the stabbing death of his grandmother, Antoinette DeAngelis, with whom he shared an apartment at 10 Clark Street in New Haven. After a jury trial the defendant was convicted of the lesser included offense of manslaughter in the first degree in violation of General Statutes (Rev. to 1979) § 53a-55 (a) (2), and was sentenced to a term of imprisonment of not less than seven and one-half years nor more than fifteen years.

On appeal the defendant claims that the trial court erred in: (1) finding the defendant competent to stand trial; (2) refusing to suppress certain statements of the defendant; (3) allowing the state to cross-examine a character witness concerning his knowledge of a complaint made to the New Haven police by the defendant’s father; and (4) denying the defendant’s motion for an examination to determine his competency to be sentenced. We find no error.

The jury could reasonably have found the following facts: At approximately 8:30 a.m. on November 21, 1979, the defendant’s mother, Norma DeAngelis, arrived for work at the DeAngelis family market which is located in the same block as 10 Clark Street. While she was pulling her car into the parking area behind the market, the defendant motioned her to a stop and told her something had happened to his grandmother who resided with him. The defendant’s mother went into the defendant’s apartment, saw the victim’s body on the kitchen floor and returned outside where she again spoke to the defendant. At that time, he told his mother that he had been out all night and had just returned and found his grandmother’s body. The defendant’s mother telephoned another son, Norman DeAngelis, at his home and then called the 911 emergency number. Police and fire department personnel responded to the call at approximately 9 a.m. and went to the first floor apartment at 10 Clark Street. When they entered the apartment, they found the body of seventy-eight year old Antoinette DeAngelis lying on the kitchen floor in a pool of blood. A steak knife was observed near the body. Death was caused by a stab wound to the neck. It appeared that the victim had been killed while she was preparing breakfast. There was no evidence of a forced entry to the apartment or that the apartment had been ransacked.

Two residents in the apartment building had heard the victim scream at about 7:30 that morning. Another neighbor saw the defendant leave his apartment at about 10 o’clock the previous night wearing dark clothes and next saw him the morning of November 21 at about 8 a.m. wearing different clothing. When the police arrived, the defendant, neatly dressed, was pacing in a parking area adjacent to 10 Clark Street. Clothing later seized from the defendant’s room had blood stains on it consistent with the victim’s blood and inconsistent with his own. The defendant on appeal does not challenge the sufficiency of the evidence to sustain a conviction.

I

The defendant’s first claim is that the trial court erred by finding him competent to stand trial. Prior to trial, the defendant, by order of the court pursuant to General Statutes (Rev. to 1983) § 54-56d (d), was examined by Wayne Fenton, a resident in psychiatry at Yale-New Haven Hospital, to determine his competency to stand trial. At a pretrial hearing before the court, Fishman, J., Fenton testified that his examination of the defendant revealed that the defendant was suffering from a major psychiatric or psychotic disorder. The witness concluded, however, that as long as the defendant received his prescribed medication he was able to understand the charges against him and to assist in his own defense and was therefore competent to stand trial.

At the same pretrial hearing the defendant produced as witnesses Susan Duffy, Jeremy August, and Joseph Gaspari, all of whom were psychiatrists who had treated the defendant. August and Gaspari, however, had not treated him for approximately a year prior to the date of the hearing. Duffy, August and Gaspari testified that the defendant had a mental illness which was properly diagnosed as chronic paranoid schizophrenia and they described his symptoms. None of the three, however, rendered an opinion as to whether the defendant was, at that time, competent to stand trial. Robert S. McWilliams, who was a resident in psychiatry at Yale-New Haven Hospital and employed as a psychiatrist at the Veterans Administration Hospital in West Haven, was also a witness at the pretrial hearing. He testified that he had treated the defendant and had seen him the night before the hearing in group therapy. McWilliams opined that the defendant could not fully understand the proceedings and was not competent to stand trial. McWilliams rendered his opinion with the reservation that he had not done a thorough psychiatric examination for the purpose of determining the defendant’s competency to stand trial. On cross-examination, McWilliams testified he had never performed a competency examination pursuant to General Statutes § 54-56d (d), admitted he did not feel qualified to do such an examination, and would seek guidance if asked to do one. He testified he based his opinion on knowledge of the defendant gained while treating him.

An accused is not competent to stand trial “if he is unable to understand the proceedings against him or to assist in his own defense.” General Statutes (Rev. to 1983) § 54-56d (a); see State v. Pastet, 169 Conn. 13, 26, 363 A.2d 41, cert. denied, 423 U.S. 937, 96 S. Ct. 297, 46 L. Ed. 2d 270 (1975). Competence to stand trial is a legal question which must ultimately be determined by the trial court. General Statutes § 54-56d (f); see United States v. Hoog, 504 F.2d 45, 49 (8th Cir. 1974); United States v. Davis, 365 F.2d 251, 256 (6th Cir. 1966); Lyles v. United States, 254 F.2d 725, 730 (D.C. Cir. 1957); United States v. Turner, 602 F. Sup. 1295, 1311 (S.D.N.Y. 1985); State v. Pastet, supra, 26. It is not a question to be determined by the number of psychiatrists testifying for or against a particular position. State v. Ontra, 178 Conn. 480, 484, 423 A.2d 134 (1979). The trial court is entitled to evaluate the conflicting testimony and consider the basis of the opinions of the expert witnesses. State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). In this case, although Duffy, August, Gaspari and McWilliams were familiar with the defendant’s condition, they had not examined him for the purpose of determining his competence to stand trial. Further, none of the four appears to have had any experience in making that determination. Fenton, on the other hand, was appointed by the court for that specific purpose and had considerable experience in that area.

The expert psychiatric testimony at the pretrial hearing pointed toward a conclusion that the defendant suffered from a mental disorder diagnosed as chronic paranoid schizophrenia. Competence to stand trial, however, is not defined in terms of mental illness. An accused may be suffering from a mental illness and nonetheless be able to understand the charges against him and to assist in his own defense; Lee v. Alabama, 406 F.2d 466, 471-72 (5th Cir. 1969); and the fact that the defendant was receiving medication and would require medication during the course of the trial does not render him incompetent. State v. Hampton, 253 La. 399, 403, 218 So. 2d 311 (1969); People v. Hardesty, 139 Mich. App. 124, 144-45, 362 N.W.2d 787 (1984).

Notwithstanding the fact that the defendant called four psychiatrists and the state only one, the trial court was entitled to credit and rely on Fenton’s testimony. “Despite the quantity of the defendant’s evidence tending to show [incompetence], the weight to be given the opinion evidence of expert witnesses ... is for [the trier of fact] to determine. State v. Kenyon, 134 Conn. 43, 49, 54 A.2d 585 (1947).” State v. Ontra, supra, 484; State v. Vennard, 159 Conn. 385, 404, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 596, 27 L. Ed. 2d 625 (1971). The trial court did not err when it found the defendant competent to be tried.

II

The defendant next claims that certain statements made to Officer Dean Runlett of the New Haven police department on November 21,1979, which were admitted at trial, should have been suppressed because they were not made voluntarily. The defendant makes no claim that he was not informed of his Miranda rights or that a waiver of those rights could not have been found. Nor does he argue that he was illegally detained or abused, that physical or overt psychological force was exerted upon him or that any threats, promises or offers were made to him. This case is, therefore, readily distinguishable on its facts from Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961), cited by the defendant. Rather the defendant argues that because of the length of his interrogation, his mental and physical condition, his emotional state, his limited intelligence, and his isolation, his will was overborne and his statements therefore could not be considered voluntary.

The evidence the defendant sought to suppress consisted principally of contradictory statements made by the defendant to Runlett concerning his activities on the night of November 20 and the early morning of November 21,1979. Runlett testified that the defendant had told him that when he arrived home, after being out all night, he found his grandmother’s body lying on the kitchen floor. The defendant later said, however, that when he had come home his grandmother prepared breakfast for both of them. Runlett also testified that the defendant told him he had been to a movie the previous evening, but later said he had stood outside the theatre and had not actually seen the show. The defendant also told Runlett at one point that he had not stopped the previous night for food or drink but later said he had gone to a “Dunkin Donuts” for coffee. Runlett further testified that in commenting on the death of the victim the defendant had said, “I didn’t mean for it to happen that way,” but when asked to elaborate denied making the statement.

“The ultimate test of the admissibility of such statements is their voluntariness.” State v. Stankowski, 184 Conn. 121, 131, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). “The issue of whether [admissions are] voluntary and admissible is, in the first instance, one of fact for determination by the trial court in the exercise of its legal discretion.” State v. Derrico, 181 Conn. 151, 162, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); see Jackson v. Denno, 378 U.S. 368, 395, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Our usual deference to the trial court’s finding on questions of this nature is qualified by the necessity for an independent examination of the entire record to determine whether the trial court’s finding of voluntariness is supported by substantial evidence. State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986); State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984). The state is required to prove as a prerequisite to admissibility that, under all the circumstances, admissions by an accused were voluntarily made. State v. Vollhardt, 157 Conn. 25, 34, 244 A.2d 601 (1968). “In meeting that burden, the state need only prove voluntariness by a preponderance of the evidence, and need not satisfy the test of proof beyond a reasonable doubt. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972).” State v. Derrico, supra, 162. “ ‘ “[T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of ‘law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined . . . . ’ Rogers v. Richmond, 365 U.S. 534, 544, [81 S. Ct. 735, 5 L. Ed. 2d 760] (1961) State v. Staples, 175 Conn. 398, 408, 399 A.2d 1269 (1978); State v. Derrico, supra, 163. “ ‘The ultimate test remains .... “Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” ’ Schneckloth v. Bustamante, 412 U.S. 218, 225, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting Culombe v. Connecticut, [367 U.S. 568, 602, 81 S. Ct. 860, 6 L. Ed. 2d 1037 (1961)].” State v. Derrico, supra, 163. “Put another way, the [admission] must be the product of an essentially free and unconstrained choice by the maker.” State v. Devine, 149 Conn 640, 653, 183 A.2d 612 (1962).

The testimony elicited at the pretrial suppression hearing was that the defendant was requested by Runlett to accompany him to police headquarters. The defendant agreed to do so and was driven to headquarters by Runlett who was in civilian clothes in an unmarked police vehicle. When the defendant arrived at police headquarters shortly before 10:30 a.m., he was read his Miranda warnings, read them himself and signed the back of the warning card. According to Runlett, the defendant was not a suspect, was not under arrest and would have been allowed to leave police headquarters at any time if he had expressed a desire to do so. The defendant’s interview with Runlett lasted from approximately 10:30 a.m. until 9 o’clock that evening. It appears, however, that most of the statements sought to be suppressed had been made in the late morning or afternoon. During the day the defendant’s mother and brother visited him and gave no indication that they wished the police to terminate their discussion with the defendant. The defendant was cooperative and agreeable throughout the day and never indicated that he did not desire to continue. The interview was conducted in question and answer fashion with long pauses when nothing was said by either party. Topics other than the death of the defendant’s grandmother were discussed. The defendant was offered food and drink on several occasions and although he declined food he was furnished coffee. Runlett was aware that the defendant had said that he had not slept the night before, but he testified the defendant appeared fresh and alert throughout the questioning. Runlett was also aware that the defendant had psychiatric problems, but testified that the defendant was coherent although he did break down emotionally and cried on two or three occasions.

At approximately 9 p.m., the defendant was asked by Runlett to give a formal written statement concerning what they had discussed during the interview. The defendant refused, saying that he wished to talk to a lawyer first. Shortly thereafter, at the request of his mother, the defendant was taken to Yale-New Haven Hospital for a psychiatric evaluation. He remained at the hospital for approximately thirty to forty-five minutes and was transported back to police headquarters where he was requested to submit to fingerprinting for comparison purposes. He refused to do so and left headquarters. He returned of his own volition the following day and was fingerprinted.

The defendant submitted, as an exhibit during the hearing on his motion to suppress, the report of Wayne Fenton dated April 13,1982. The report had been prepared pursuant to a court ordered competency examination. Fenton’s report concluded that although the defendant was suffering from a psychiatric disorder “he displays a good understanding of the proceedings against him and appears adequately able to assist his attorney in his defense. While he has some cognitive impairment secondary to low intelligence and residual thought disorder, this is not so severe as to interfere with his ability to comprehend instruction and advice, make decisions, testify if necessary and maintain a collaborative relationship with his attorney.” No medical evidence other than Fenton’s report was submitted at the suppression hearing.

The mere fact that admissions are made by an accused after a long period of interrogation by a police officer does not necessarily mean those admissions are involuntary. State v. Malm, 142 Conn. 113, 120, 111 A.2d 685 (1955); State v. Poole, 44 N.C. App. 242, 248, 261 S.E.2d 10 (1979); 29 Am. Jur. 2d, Evidence § 529. Nor does the fact that the defendant was somewhat deficient in mental ability, had a psychiatric disorder, and was upset emotionally, necessarily render his statements inadmissible. State v. Jones, 193 Conn. 70, 84-85, 475 A.2d 1087 (1984); State v. Poole, supra, 248. The court must make a determination of voluntariness based on all the circumstances. Gallegos v. Colorado, 370 U.S. 49, 52, 55, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962); State v. Staples, 175 Conn. 398, 408, 399 A.2d 1269 (1978).

In this case the trial court had evidence before it that the defendant went to and remained at police headquarters voluntarily, was visited by his mother and brother, was apparently well treated and was cooperative and coherent throughout the day. Further, at the end of the interview, he refused to give a written statement to the police and later refused to be fingerprinted. His refusals are persuasive evidence that, despite his deficiencies and the length of the questioning, the defendant was in control of the situation and his will was not subverted to that of his interrogator. We cannot say, therefore, that the trial court erred when it concluded that the defendant’s admissions were voluntarily made and admitted them in evidence.

III

The defendant also claims that the trial court erred in allowing the prosecutor to cross-examine his brother, Norman DeAngelis, concerning a complaint made to the New Haven police department by the defendant’s father.

The defendant offered the testimony of his brother on direct examination to prove his claimed character trait of peacefulness and nonviolence. On cross-examination the state’s attorney asked Norman DeAngelis: “Do you know whether your father filed a complaint with the New Haven Police Department on November 9,1979, less than two weeks before the crime charged in this case wherein your father complained that the accused was acting very strangely and gets upset over anything that happens?” The witness answered that he did not. Objection was made to the question and an exception was taken to the court’s ruling allowing it.

The question asked by the state’s attorney is analogous to a question concerning specific acts of prior misconduct by an accused. Such a question may not be asked of a witness to elicit testimony that the defendant is a violent person in order to prove his guilt of the crime charged; State v. DeFreitas, 179 Conn. 431, 461, 426 A.2d 799 (1980); or to disprove the character trait in question. State v. Turcio, 178 Conn. 116, 126, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). The opinion of a witness who testifies that an accused is peaceful, passive and nonviolent, however, must have some basis and the state is allowed to test that basis. “When a character witness has given his opinion as to a particular trait, the state may cross-examine that witness concerning specific acts, not to disprove the truth of such facts, but to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy.” State v. Martin, supra, 164-65.

The obvious purpose of the state’s question on cross-examination was to test the accuracy of Norman DeAngelis’ assessment of the defendant’s character and “the good faith with which he testified.” State v. Martin, supra, 165; State v. Turcio, supra, 125-26. The witness had worked at the family market with the defendant and their father and being a family member was ostensibly in a position to know the family’s affairs. His answer that he was unaware that his father had contacted the police concerning his brother’s conduct might have caused the jury to believe that he was not cognizant of an important factor that could affect his assessment of the defendant’s character. The defendant claims, however, that the question was not relevant because his father’s complaint had nothing to do with peacefulness and nonviolence. Rather his father complained only that the defendant was “acting very strangely” and “getting upset.” “When the prosecutor attacks the basis of the witness’ opinion by questioning him as to knowledge of specific acts, such acts must be relevant to those traits.” State v. Martin, supra, 165-66. It is, however, hard to imagine a father making a complaint to the police about his son unless he fears some dangerous action. The question was reasonably designed to elicit evidence of behavior on the part of the defendant which, if the witness were aware of it, would seriously discredit his opinion of the defendant’s character as nonviolent and if he was not aware of it, the basis for his opinion.

The determination, on cross-examination, of the relevance of evidence to test the credibility and the basis of the opinion of a character witness must be made according to reason and judicial experience. State v. Turcio, supra, 127. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. [Citation omitted.] Reversal is required only where . . . injustice appears to have been done.” State v. Brown, 169 Conn. 692, 702, 364 A.2d 186 (1975). “ ‘[T]he ultimate issue is whether the court could reasonably conclude as it did.’ DiPalma v. Wiesen, 163 Conn. 293, 299, 303 A.2d 709 (1972).” State v. Martin, supra, 166. The trial judge must decide, in the exercise of judicial discretion, whether the probative value of the testimony elicited by the question on cross-examination outweighs the prejudice likely to result from its admission. State v. Ralls, 167 Conn. 408, 417, 356 A.2d 147 (1974); State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

The defendant put his character in issue through his brother’s direct testimony. We cannot say that the trial court abused its discretion in allowing the state to question the brother concerning the basis for his testimony and his good faith in testifying.

IV

The defendant’s final claim is that the trial court erred by denying his motion that he be examined to determine his competency to be sentenced. The defendant, after he was found guilty, did not move for an examination under General Statutes § 54-56d (c) to determine his competence. Rather he moved for an examination under General Statutes § 17-244. The purpose of an examination under § 17-244 is not to determine competency to be sentenced. That section presumes that a convicted defendant will be sentenced. The purpose of an examination under § 17-244 is to allow the commissioner of mental health to make recommendations as to certain offenders concerning the sentence to be imposed and the place of confinement. See General Statutes §§ 17-244 and 17-245.* ** That that was the purpose for which the defendant’s motion was offered is obvious from the transcript of the hearing on the defendant’s motion, which took place on April 4,1983. At that time defense counsel argued, “I cannot see any reason why the Court and why the State’s Attorney’s office and why the probation officer would not at least want the input of as many professionals as is possible for the purpose of determining what an appropriate sentence would be. That is what we are asking.”

Section 17-244 (a) allows the trial court in its discretion to order an examination of a convicted defendant by the commissioner of mental health if it appears to the court that such person is “mentally ill and dangerous to himself or others.” (Emphasis added.) The psychiatric reports submitted as exhibits at the hearing on April 4, 1983, while they indicate that the defendant was suffering from a mental illness and that imprisonment in a conventional prison setting might be detrimental to him, contain nothing to indicate that he was presently a danger to himself or others. The trial court did not abuse its discretion in refusing to order an examination under § 17-244 as requested by the defendant. See State v. Gates, 198 Conn. 397, 404, 503 A.2d 163 (1986).

The defendant’s brief appears to claim, however, that the psychiatric reports submitted in connection with the defendant’s motion for a hearing under § 17-244 were sufficient to alert the trial court to the question of the defendant’s competence to be sentenced, and the trial court, apparently sua sponte, should have ordered a competency examination. “A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceeding against him or to assist in his own defense.” (Emphasis added.) General Statutes (Rev. to 1983) § 54-56d (a); State v. Lloyd, 199 Conn. 359, 364-65, 507 A.2d 992 (1986).

We recognize that the trial court had a constitutional obligation under the due process clause, sua sponte, to hold an evidentiary hearing, and if necessary, to order a competency examination, if there was substantial evidence that the defendant was not competent. Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); State v. Lloyd, supra, 365; State v. Watson, 198 Conn. 598, 605, 504 A.2d 497 (1986). A review of the record, however, reveals that prior to sentencing the trial court had the benefit of the psychiatric report submitted in connection with the defendant’s court-ordered § 54-56d examination, when he was found competent to stand trial, and also observed him throughout the trial. It also had three psychiatric reports prepared after the defendant’s conviction and submitted by the defendant as exhibits at the hearing in connection with his § 17-244 motion. These reports do not indicate that the defendant’s mental condition had deteriorated since the date of the court-ordered competency examination or that he was not competent to be sentenced.

On the basis of the record, therefore, the trial court did not have before it such substantial evidence of the alleged lack of competence of the defendant to be sentenced to require it, sua sponte, to undertake an evidentiary inquiry or order a competency examination. The trial court, therefore, did not violate the defendant’s right to due process by proceeding with sentencing.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1979)] § 53a-55 (a) (2) provides in pertinent part: Sec. 53a-55. manslaughter in the first degree: class b felony. (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection

       “[General Statutes (Rev. to 1983)] Sec. 54-56d. (Formerly 54-40). competency TO STAND TRIAL, (a) COMPETENCY REQUIRED. DEFINITION. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
      “(b) PRESUMPTION OF competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.
      “(c) REQUEST FOR EXAMINATION TO DETERMINE COMPETENCY. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.
      “(d) examination of defendant, report. If the court finds that the request for an examination is justified and that, in accordance with procedures established by the judges of the superior court, there is probable cause to believe that the defendant has committed the crime for which he is charged, the court shall order an examination of the defendant as to his competency. The court either may appoint one or more physicians specializing in psychiatry to examine the defendant or it may order the commissioner of mental health to conduct the examination either by a clinical team consisting of a physician specializing in psychiatry, a clinical psychologist and a psychiatric social worker, or by one or more physicians specializing in psychiatry. If the commissioner of mental health is ordered to conduct the examination, he shall select the members of the clinical team or the physician or physicians. If the examiners determine that the defendant is not competent, they shall then determine whether there is substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order under this section. The court may authorize a physician specializing in psychiatry, a clinical psychologist or a psychiatric social worker selected by the defendant to observe the examination. Counsel for the defendant may observe the examination. The examination shall be completed within fifteen days from the date it was ordered. The examiner or examiners shall file a written report with the court at the completion of the examination. On receipt of the written report, the clerk of the court shall cause copies to be delivered immediately to the state’s attorney and to counsel for the defendant.
      “(e) hearing, waiver. The court shall hold a hearing as to the competency of the defendant no later than ten days after it receives the written report. Any evidence regarding the defendant’s competency, including the written report, may be introduced at the hearing by either the defendant or the state. If the written report is introduced, at least one of the examiners must be present to testify as to the determinations in the report, unless his presence is waived by the defendant and the state. Any member of the clinical team shall be considered competent to testify as to the team’s determinations. A defendant and his counsel may waive the court hearing only if the examiners, in the written report, determine without qualification that the defendant is competent.
      “(f) continuation of criminal proceedings. If the court, after the hearing, finds that the defendant is competent, it shall continue with the criminal proceedings. If it finds that the defendant is not competent, it shall also find whether there is substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order permitted under this section. . . .”

       “[General Statutes] Sec. 17-244. certain convicted persons to be examined, report and recommendation, (a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction. Such examination shall be conducted and the report made to the court not later than fifteen days after the order for the examination. Such examination may be conducted at a correctional facility if the defendant is confined or it may be conducted on an outpatient basis at the institute or other appropriate location. If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the institute for a period not to exceed sixty days, except as provided in section 17-245 provided the hearing may be waived by the defendant. Such commitment shall not be effective until the director certifies to the court that space is available at the diagnostic unit. While confined in said diagnostic unit, the defendant shall be given a complete physical and psychiatric examination by the staff of the unit and may receive medication and treatment without his consent. The director shall have authority to procure all court records, institutional records and probation or other reports which provide information about the defendant.
      “(b) The request for such examination may be made by the state’s attorney or assistant state’s attorney who prosecuted the defendant for an offense specified in this section, or by the defendant or his attorney in his behalf. If the court orders such examination, a copy of the examination order shall be served upon the defendant to be examined.
      “(c) Upon completion of the physical and psychiatric examination of the defendant, but not later than sixty days after admission to the diagnostic unit, a written report of the results thereof shall be filed in triplicate with the clerk of the court before which he was convicted, and such clerk shall cause copies to be delivered to the state’s attorney and to counsel for the defendant.
      “(d) Such report shall include the following: (1) A description of the nature of the examination; (2) a diagnosis of the mental condition of the defendant; (S) an opinion as to whether the diagnosis and prognosis demonstrate clearly that the defendant is actually dangerous to himself or others and requires custody, care and treatment at the institute; and (4) a recommendation as to whether the defendant should be sentenced in accordance with the conviction, sentenced in accordance with the conviction and confined in the institute for custody, care and treatment, placed on probation by the court or placed on probation by the court with the requirement, as a condition to probation, that he receive outpatient psychiatric treatment.”

       “[General Statutes] Sec. 17-245. disposition of defendant after report, (a) If the report recommends that the defendant be sentenced in accordance with the conviction, placed on probation by the court or placed on probation by the court with the requirement, as a condition of such probation, that he receive outpatient psychiatric treatment, the defendant shall be returned directly to the court for disposition. If the report recommends sentencing in accordance with the conviction and confinement in the institute for custody, care and treatment, then during the period between the submission of the report and the disposition of the defendant by the court such defendant shall remain at the institute and may receive such custody, care and treatment as is consistent with his medical needs.
      “(b) If the report recommends confinement at the institute for custody, care and treatment, the court shall set the matter for a hearing not later than fifteen days after receipt of the report. Any evidence, including the report ordered by the court, regarding the defendant’s mental condition may be introduced at the hearing by either party. Any staff member of the diagnostic unit who participated in the examination of the defendant and who signed the report may testify as to the contents of the report. The defendant may waive the court hearing.
      “(c) If at such hearing the court finds the defendant is not in need of custody, care and treatment at the institute, it shall sentence him in accordance with the conviction or place him on probation. If the court finds that such person is in need of outpatient psychiatric treatment, it may place him on probation on condition that he receive such treatment. If the court finds such person to be mentally ill and dangerous to himself or others and to require custody, care and treatment at the institute, it shall sentence him in accordance with the conviction and order confinement in the institute for custody, care and treatment provided no court may order such confinement if the report does not recommend confinement at the institute. The defendant shall not be subject to custody, care and treatment under this part beyond the maximum period specified in the sentence.”